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A tLCJ I$", /C)q.s
PETITION ).'OR PRODA TE and GRANT OF LETTERS
.
E-'tal~ of k,i!Cl#-<-1 c:!Jt'(;;t'JT,I/v'C No. . :':"/-QS -39.;:/.
also k"o",,, us I To:
Regisler of Wills for I he
D~{'~as~d. CounlY of In Ihe
Soclul Sl><'IIrity No. Sbf. - /'.1 -/-sI /')# Commonweallh of Pennsylvania
The pelition of Ihe undersigned respectfully represellls Ihal:
Your pelitioner(s). who Is/arc 18 years of age or older anlhe exeeulaR
inlhe lasl will of Ihe above deeedelll, daled
and eodicil(s) daled
named
.19_
(..Iale 1('lc\'<<nl clrClln1\IUnCCS1 C,B. rellunclatlun. death of CX'-'1:1I10f, cle.)
Deeendelll was domielled.nI.dealh in ('1{o/J/6E' ,c.</} /1/,). Coumy, Pennsylv?nia, with
h f"J< last family or pnnclllal rcsidcncc at /.;1-16" ~ ~rc N-{1'('JbH ,))p
C(-h?7/' IhAA. ..':t.J. /71') 1/
(IiM lIIre!:I, number and rnuncll1alilY)
Deeendenl, then t?o years of age, died .Fkb,(!t'Il-'71 /~, 19 1.-S-,
m .
Exeepl as follows, decedenl did nol marry, was not divorced and did nol have a child born or adopted
afler exeeullon of the will offered for probate: was not the vielim of a killing and was never adjudicated
ineompetenl:
Deeendent at dealh owned properly with estimated values as foilows:
(If domiciled in Pa.) All personal properlY S
(If nOl domiciled in Pa.) Personal properly in Pennsylvania S
(If not domiciled In Pa.) Personal properly In Counly S
Value of real eSlute In Pennsylvania S
situmed as follows:
WHEREFORE. pelitioner(s) respectfully requesl(s) the probate of the lasl will and codicil(s)
presemed herewilh and Ihe granl of letters
theron.
(tt'!ilnmelllnr),i ndmlnhlnulon c.I.a.; administration d.b.n.c.l.a.)
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OATH OF PERSONAL REPRESENTATIVE
COMMONWEALTH OF PENNSYLVANIA } 8S
COUNTY OF
The pelitloner(s) above.named swear(s) or aflirm(s) thai the stalemenls in the foregoing pelition arc
Irue and correello the best of Ihe knowledge and belief of pelitloner(s) and Ihat as personal represen-
latlve(s) of lhe above deeedenl pelitioner(s) will well and lIyadminiSler ale according to law.
Sworn 10 or affirmed and
before me this
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subscribed {'
day of
19_
Reliisl~r
,;., If:. ,
No.
Estate of
, Deceased
DECREE 01" PROBATE AND GRANT OF LETTERS
AND NOW 19_. in consideration of the petition on
the reverse side hereof, satisfactory proof havln8 becn prcscntcd bcfore mc,
IT IS DECREED that the Instrull1em(s) dated
descrlbcd thcrcln bc admlllcd to probatc and n1cd of record as thc last will of
and Lcllcrs
are hcrcby 8ranted to
Rralucr or Wills
FEES
Probatc, Lellcrs, Etc. ......... S
Short Ccrtlficatcs( ).......... S
Renunciation ................ S
ATIORNEY (Sup. Ct. t.O. No.)
S
TOTAL _ S
ADDRESS
Filcd
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RENUNCIATION
.
F. ;<J-tI6' tItS TINE"
deceased.
To the Register or Wills or (! om ,0G,e -<Alii/)
County. Pennsylvania.
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The undersigned ...1ctnfiYI\I.f' Q.J;';'~I ,,;)g /J1flJllvJ E.Xe-/! /JrA!/)(
I . #
be Issued to
() 1I~<'5ft:.c. C.
or
the above decedent, hereby renounce(s) the right to administer the cstntc nnd respectrully ask(s) that Lellers
WITNESS
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hand this /?L - day or /l/A-tf't'1I .19-2:E
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LAST WILL AND TESTAMENT
'-.
OF
.
DOROTHY E. AUGUSTINE
I, DOROTHY E. AUGUSTINE, of Camp Hill, Cumberland
county, Pennsylvania, being of sound mind, memory and
understanding, do make, publish and declare this to be my
Last Will and Testament, hereby reVOking all other Wills by
me at anytime heretofore made.
Direct payment of my just debts and
my estate as soon as practicable
ITEM II
funeral expenses from
fOllowing my death.
ITEM III I give, devise and bequeath my
diamond rings to my yreat-granddaughter Jenna Marie Ricther.
ITEM 1111 I give, devise and bequeath the rest,
residue and remainder of my estate, whether real or
personal, or wheresoever the same may be situate, to my
granddaughter, Sharon K. Ricther.
ITEM IVI In the event that my granddaughter,
Sharon K. Ricther should predecease me, or if we should die
in a common disaster, then I give, devise, and bequeath my
estate to my four great grandchildren, share and share
alike.
ITEM VI
my good friend,
Pennsylvania as
I nominate, constitute and appoint
Romayne Shay McMahon, of Camp Hill,
Executor of this my Last Will and Testament.
ITEM VII I direct that no Executor or other
fiduciary named, nominated, or appointed n this my Last Will
and Testament shall be required to post any bond or give any
security of any type for any purpose whatsoever, any law or
rule of the Court of the Commonwealth of Pennsylvania or any
other jurisdiction to the contrary notwithstanding.
IN WITNESS WHEREOF, I have hereunto set my hand and
seal this 27 day of August, 1992.
Sworn and lubSl: Ibad b.fore ma 111!t.,
y,;::"IP.~i-
;f~['~
Sgned, sealed, published and declared by the said
Dorothy E: Aqgustine, the above named Testatrix, as and for
her Last Will and Testament, in the presence of us, who at
her request and in her presence and ill ~he presence of each
other, all being present at the same time, have hereunto
subscribed our names as witnesses.
.9:~ W-<v
f'1/JrS;
residing n...\J,t...pv.. ~lll, t;t..(j~t'J ~ J) II.}
residing <)77.f/&1.s./. /p! A /.////
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IN REI
ESTATE OF DOROTHY I
E. AUGUSTIN, deceased I
I
I
I
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
ESTATE NO. 21., II U 0
~/-95 -39':1...
AND NOW.
./{ir
this ~ day
~
OF /-71'1 (.0Ly'
'. __ ~f
consideration of the foregoing Petition for Grant
. 1995. upon
of Letters of
Administration. a RUle is hereby issued upon Sharon K. Richter to
show cause why letters of administration should not be granted to
Robert G. Augustin. This Rule is returnable twenty (20) days after
service hereof.
BY THE COURT.
IJCL~J \~ . (~l--,
I' . J.
IN REI
BSTATE OF DOROTHY
B. AUGUSTIN, deoeased
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
ESTATE NO. 21.92.190
ORDER
AND NOW, this ____ day of , 1995, upon
consideration of the foregoing petition for Grant of Letters of
Administration it is hereby ORDERED that:
1. Mary C. Lewis, Register of wills of cumberland County,
pennsylvania, shall certify to this Court the entire record of the
above-captioned estate;
2. Further administration of the above-captioned estate is
enjoined pending resolution of the issues raised by the foregoing
petition;
3. A rule is issued upon Sharon K. Richter to show cause why
letters of administration should not be granted to Robert G.
Augustin, said rule to be returnable twenty (20) days after service
thereof; and
4. If a hearing is to be held on the foregoing petition,
said hearing shall be consolidated with any hearing to be held on
the petition filed of even date herewith to revoke letters of
administration and probate the will of Sylvester E. Augustin.
BY THE COURT,
, J.
IN REI
ESTATE OF DOROTHY I
E. AUGUSTIN, deceased I
I
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
ESTATE NO.
PETITION FOR GRANT OF LETTERS OF ADMINISTRATION
AND NOW. comes Robert G. Augustin, Petitioner, by and through
his attorneys. Lowell R. Gates, P.C., and represents as follows I
1. Dorothy E. Augus tin (hereinafter the "Decedent") was a
resident of Camp Hill, cumberland County, pennsylvania, and died
February 15. 1995.
2. petitioner, Robert G. Augustin, now of 323 sixth Street,
New Cumberland, cumberland County, pennsylvania 17070, is the
adopted son of Decedent and her spouse, sylvester E. Augustin.
3. sylvester E. Augustin died November 17, 1991.
4. Decedent I s only presumptive heirs are petitioner and
Sharon K. Richter, now of 308 Linden Courts, Moncks Corner,
Berkeley County, South carolina 29461. Sharon K. Richter is the
sole child of Dorothy E. Augustin'S predeceased natural daughter,
Betty Hiott. Both presumptive heirs are sui juris.
5. Upon information and belief, a petition for probate and
grant of letters was submitted to the cumberland County Register of
Wills by Chester C. Crone on or about March 14, 1995.
6. Upon information and belief, the Cumberland County
Register of Wills has refused to grant the petition for probate and
grant of letters.
7. Upon information and belief, Decedent did not have a
valid will at the time of her death.
8. Upon information and belief, Decedent filed for debtor
protection under Chapter 13 of the U. S. Bankruptcy Code under
Docket No. 1-94-00546 in the United States Bankruptcy Court for the
Middle District of Pennsylvania. petitioner is unaware of the
present status of said bankruptcy proceeding.
9. Petitioner is unable to estimate the value of Docedont'o
estate.
10. petitioner has filed a separate petition of even date
herewith to revoke letters of administration and probato I;ho wIll
of Sylvester E. Augustin.
WHEREFORE, Petitioner respectfully requosts that the
Court:
A. Direct the Register of Wills of Cumberland
County, pennsylvania, to certify the entire rocord of
Decedent's estate to this Court for resolution of tho
issues raised herein, pursuant to 20 Pa.C.S. 5907;
B. Enjoin any further administration of Docodent I s
estate pending resolution of the issues raiaod horoin;
C. Issue a rule upon Sharon K. Richter and such
other parties as the Court may direct to show causo why
letters of administration should not be granted to Robert
G. Augustin; and
D. Consolidating any hearing on the instant
petition with any hearing to be held on a petition of
2
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.
even date herewith concerninq the estate of Sylvester E.
Auqustin.
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R~y;;;p;~~.W
Mark E. Halbruner, Esquire
Supreme Court I.D. #66737
LOWELL R. GATES. P.C.
600 North 12th Street
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for petitioner)
DATED:
~;..~
, 1995
"
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3
VERIFICATION
The foregoing petition is based upon information which has
been gathered by my counsel in preparation for this proceeding.
The language of the document is that of my counsel and is not my
own. I have read the document and to the extent that it is based
upon information which I have given to my counsel. it is true and
correct to the best of my knowledge. information and belief. To
the extent that the content of the document is that of my counsel.
I have relied upon my counsel in making this verification. This
statement and verification are made subject to the penalties of 18
Pa.C.S. 54904 relating to unsworn falsification to authorities.
which provides that if I make knowingly false averments. I may be
subject to criminal penalties.
~/: ~-/~/
Robert G. Augustin
Dated: I ~- _5 - 7:5
00 t51 :off;'
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IN REI
ESTATE OF DOROTHY I
E. AUGUSTIN, deceased I
I
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
: ESTATE NO. 21-95.392
CERTIFICATE OF SERVICE
I, Mark E. Halbruner, Esquire, of the law firm of Lowell R.
Gates, P.C., hereby certify that I served a true and correct copy
of the Rule (and underlying petition) issued in the above-captioned
estate, on this date, by certified mail, return receipt requested,
to the following:
Sharon K. Richter
308 Linden Courts
Moncks Corner, sc 29461
LOWELL R.GATES, P.C.
BY:
Mark .
Sup. Ct. 1.0. #66737
600 North 12th Street
Suite 2
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Petitioner)
Dated: May 25, 1995
I
---.----.-."--.. .".'-
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IN Rl.:
IN THl. COURT OF commON PLl.AS
CUmBl.RlAND COUNTY I. Pl.NNSYLVANIA
ORPHANS I COURT DIvISION
l.STATl. NO. 21-95-]92
IINSI//l.'il TO "aITION FO'il (j'illlNT OF laTl.'ilS OF IIDflJINISTtMTION
l.STATl. OF DO'i/OTHY
l.. AU(jUSTINl., decea~ed
I. AdmLtted.
2. AdmLtted Ln pant. The PetLtLonen, 'i/obent (j. Augu4tLn wa4
adopted bV SvLve~ten l.. and Donothv l.. Au~u~tLne onLV a/ten theV wene
mannLed a~ toLd dLnectLv to me bV 'i/obent becau~e he dLd not know hL4
bLnth necond4 wene de4tnoved Ln a counthou4e /Lne untLL he had to
mannv the gLnL he wa4 to have a chLLd wLth and wa4 not 0/ Le~aL age
wLthout penmL44Lon {nom a LegaL ~aundLan he wouLd not have been abLe
to ~et mannLed. So mv gnandmothen agneed to adopt hLm. He wa4 actuaLLv
adopted bV SvLve4ten and loL4 V. Au~u4tLn 4hontLv a/ten hL4 bLnth. He
L4 LLvLng wLth thL4 moth en and ha4 been Ion 40me tLme and aL40 whLLe
mv ~nandmothen wa4 aLLve. LoL4 V. Au~u4tLn and SvLve~ten l.. Augu4tLne
wene di.I'onced appnox LmateLv 2 vean4 be/one mv gnandmothen (Donothv)
wene mannLed.
]. AdmLtted.
4. DenLed. AccondLn~ to the la~t WLLL And Te4tament 0/ Donothv
l.. Augu4tLne hen on LV heLn4 ane Shanon K. 'i/Lchten (40Le chLLd 0/
Donothv l.. Augu4tLne'4 pnedecea4ed on LV natunaL chLLd, hen daughten
Bettv HLott.), and the onLV natunaL ~neat-~nandchLLdnen 0/ Danothv l..
Augu4tLne. ALL /oun 0/ whom ane named (jLna manLe 'i/Lchten, Andnew 9ame~
'i/Lchten, DanLeL 904eph 'i/Lchten, and TLmothv 'i/van 'i/Lchten.
5. AdmLtted.
6. Unknown.
7. DenLed. I wa4 ~Lven the wLLL upon annLvaL Ln Penn4vLvanLa
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alten nvtilicativn vi hen death bV the lxecutvn vi the wiLL, Rvmayne
Shay mcmahvn. The wiLL wa~ dnawn up bV mv 9nandmvthen rDvnvthv)
and witne~~ed on AU9u~t 27, 1992.
8. Admitted in pant. Denied in pant. 1 wa~ awane vi the
Banknuptcy liLed and ~o wa~ the petitionen Robent ~. AU9u~tin, becau~e
he pen~onaLLy toLd me he heLped hen annive at the e~timated dvLLan
li9une~. AL~o ha~ aLL vi mv 9nandmothen'~ linanciaL necond~, becau~e
he ~aid he wa~ 90in9 to liLe hen tax netunn~ Ion hen becau~e ~he couLd
not handLe thin9~ Like that ~ince ~nandpa died.
9. Denied in pant. Robent mu~t know about the neaL-e~tate
pnvpentie~ mv 9nandmothen ac~uined dunin9 hen vean~ a~ a neaL-e~tate
agent and Inom money ~he ac~uined Inom a Li/e in~unance pvLicy a~ a ne~uLt
01 hen dau9hten'~ death in which ~he bou9ht ~vme pnopentv with it.
Thi~ inlvnmation i~ evident bV the ~-- ~? . copy 01 the mont9age ~he
and Robent dnew up and wa~ necvnded Septemben 14, 1992, in the
CommonweaLth 01 Penn~vLvania, County 01 Dauphin. The mont9age wa~
actuaLLy ~i9ned and nvtvniled Septemben I, 1992, then neconded in the
Ollice Ivn Recondin9 01 Deed~, in and /vn the Cvunty 01 Dauphin in
Recvnd Bvvk /82/, Page 48/ and witne~~ed on Septemben /4, 1992. Robent
know~ by thi~ and hi~ deaLin9~ with mv 9nandmvthen'~ necond~ that the
pnvpentie~ ane wonth $225,000.00. In which he ha~ nvt paid hen Ion
entineLy and knew that ~he wanted him to pay the payment~ to me in the
event 01 hen death. He ha~ ollened thi~ to me in pen~on but at a
~ub~taniaLLy Lowen payment, which i~ not what mv 9nandmothen intended.
He ha~ nv vne to ~uppont and ha~ pnopentie~ 01 hi~ vwn and a bu~ine~~
0/ hi~ vwn and wiLL inhenit the home he know Live~ in with hi~ lin~t
advpted mothen. 1 have loun ~maLL chiLdnen and a mob'iLe home, nv
money in the bank and have had to nevent to acceptin9 /vod ~tamp~ Ion
the fLn4t tLme Ln mv LLfe. ~v hU40and ha4 had tu Leave the 4tate
due tu Luu4Ln~ hL4 juo at the ChanLe4tun NavaL Shipvand CLu4Ln~ and
1 have nu lamiLv tu heLp me and 1 can nut wunh oecau4e 1 have tu take
cane ul mv chLLdnen. We dun't even knuw if we can 4ave the unLV hume
we have even uwned whLch ha4 oeen lun 9i vean4, even Lf Lt~unLv a
mubLLe hume Lt L4 aLL we have. ~v ~nandmuthen cuuLd nut heLp U4
uut ILnancLaLLv becau4e uf aLL the vean4 4he and 9nandpa ~ave ten4 ul
thuu4and4 ul duLLan4 tu Rubent tu 4tant oU4ine~ 4ave bU4Lne44 and
buV pnupentLe4. We neven a4ked mv 9nandmuthen lun ILnancLaL heLp
LLke that. We had tu ILLe Banknuptcv due tu mv havLn~ cancen and 8
majun 4ungenLe4 and 4 chLLdnen Ln /2 vean4. We have had a tnemenduu4
ILnancLaL bunden and mv ~nandmuthen aLwaV4 4aLd the abuve mentLuned
pnupentLe4 wene tu heLp U4 have 4umethLng 4umedav 4Lnce 4he cuuLd du
nuthLn~ LLke what 4he did lun Rubent lun me un mv muthen. Becau4e
we Lived down hene Ln South CanoLLna we kept a4 manv pnubLem4 a4 we
cuuLd to uun4eLve4 becau4e we knuw 4he wa4 4uch a genenOU4 pen40n and
mav have jeponLdi]ed hen own ILnancLaL 4taoLLLtv to heLp U4. She tnLed
La4t 4ummen and 4ent U4 a check lun the Lan~e4t amount 4he even ~ave U4
whLch wa4 Ion $500.00 and the check oounced cau4in~ U4 hundned4 01
duLLan4 Ln ILne4 oecau4e the monev 4he wa4 expectin~ Inom Robent wa4
not comin~ Ln. Upon admi44Lon4 fnom manv ul mv ~nandmothen'4 Iniend4
Robent wa4 aLwaV4 taLkLn~ hen Lnto ~LvLn~ him money and buvLn~ pnopentie4
lun hLm wLth pnomL4e4 tu manv thLng4 lun hen and 4he aLwaV4 lungave hLm
and gave hLm anuthen chance and OV manv conven4ation4 with hen 4he toLd
me huw much he wa4 hunting hen oecau4e 4he dLd 40 much Ion hLm and 4he
needed to beLLeve he caned fon hen and he even tnLed tu take hen hume
awav Inom hen whiLe 4he wa4 4tiLL aLLve. 1 Love mv Step-UncLe and 1
want what i4 lain lun him and I think thi4 pnuce44 he~Leadin~ U4 tu
i4 an abuminatiun tu the memunv ul buth SvLve4ten and Ounuthv. TheV
buth wanted U4 tu have 4umethin~ lun uun lutune and I wuuLd nut dneam
ul tnvin~ tu de4tnuv the wi4he4 ~nandpa had lun Rubent and I neven
thuu~ht he wuuLd du that tu me.
10. I have une pnubLem with Rubent pnubatin~ hi4 wiLL. Why i4
he a4kin~ penmi44iun tu pnubate hi4 and denvin~ mine? Thi4 4eem4
4eLli4h and pnuve4 une mune time that he i4 tnvin~ tu take evenvthin~
that beLun~ed tu mv ~nandmuthen and becau4e I am neLated tu hen he due4
nut want me tu have anvthin~. I have dune evenvthin~ tu 4huw mv
~nandmuthen I Loved and caned Ion hen and only a4ked Ion hen Love in
netunn and 4he did nut have to buy mv Love on ~ive me thin~4 to make
me cane Ion hen. I am the only one who wa4 wiLLin~ to accept ne4pon4ibiLitv
Ion hen lunenaL and buniaL expen4e4. Not one uthen lamiLv memben ollened
and I am the one with mv name on the biLL. Robent did nut even come
to hen !unenaL. I wa4 Loukin~ !onwand tu 4eein~ him and needed him to
be thene. We have aLwaV4 ~otten aLon~ and I neven dneamed thin~4 wuuLd
come tu thi4. ALL I want i4 lun evehythin~ to be done lainLv. I wa4
thene Ion ~nandpa'4 lunenaL and vi4ited him twice dunin~ hi4 iLLne44.
I am the one who had to bonnuw money jU4t tu du the4e thin~4 and I have
no idea huw I am ~uin~ tu pay Ion the {unenaL and buniaL expen4e4, which
wa4 4uppu4ed to cume uut ul hen e4tate. Rubent wa4 4uppu4ed to pay the
taxe4 and keep the pnupentie4 lixed up and nentabLe and nuw thene may
be nuthin~ Le/t becaU4e he Let them ~o. But he expect4 tu ~et the huu4e
un 1298 letchwonth accondin~ tu hi4 adopted lathen'4 wi4he4 but I am
not tu ~et anvthin~ accundin~ tu him. Thi4 i4 nut ni~ht and I am the
une in dine need 01 heLp. Thene i4 nu uthen inhenitance lun me and he
ha4 a hume, many pnupentie4, and the home he nuw Live4 in with hi4
muthen and wiLL inhenit.
Rabe~t ha~ the maney !a~ atta~ney lee~ and hnaw~ I da nat and
I think yau will ag~ee with me that I have given ma~e than enaugh
~ea~an~ why lette~~ o! admini~t~aHan ~hauld nat be f},~anted ta
Rabe~t y. Augu~tin.
I al~a think nothing ~hauld be g~anted ta him cance~ning the
e~tate 01 Sylve~te~ e. AUf}u~tin until we came upan a lai~ ag~eement
in thi~ matte~. I will be ma~e than happy ta ~e~olve thi~ p~amptly
and 'ai~ly. I have nat any p~ale~~ianal expe~ience in campa~ing
thi~ lette~ and I hape yau can accept my apalagie~ la~ thi~ lack
al p~a/e~~ianali~m. I an~we~ed with the be~t al my knawledge and
'~am my hea~t. Eve~ything I have ~aid in thi~ lette~ i~ t~ue to the
be~t al my knawledge. I have campleted thi~ lette~ within the time
a~de~ed and hape I have made clea~ my de~i~e ta have a lai~ and hane~t
canclu~ian ta thi~ ext~emely painlul matte~ invalving people I lave
and knew all my li/e and mi~~ dea~ly.
RESPECTFULLY SUBmITTeD,
SI!3A~'0 K I~C~
SHARON K. RICHTER
]08 LINDEN COURT
mONCKS CORNER, SC 29461
(80]1 761-]280
(yRANDDAUyHTER AND HeIR OF
DOROTHY E. AUyUSTINll
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LAST WILL AND TESTAMENT
OF
.
DOROTHY E. AUGUSTINE
I, DOROTHY E. AUGUSTINE, of Camp Hill, Cumberland
County, Pennsylvania, being of sound mind, memory and
understanding, do make, publish and declare this to be my
Last Will and Testament, hereby revoking all other Wills by
me at anytime heretofore made.
Direct payment of my just debts and
my estate as soon as practicable
ITEM I:
funeral expenses from
following my death.
ITEM II: I give, devise and bequeath my
diamond rings to my great-granddaughter Jenna Marie Ricther.
ITEM III: I give, devise and bequeath the rest,
residue and remainder of my estate, whether real or
personal, or wheresoever the same may be situate, to my
granddaughter, Sharon K. Ricther.
ITEM IV: In the event that my granddaughter,
Sharon K. Ricther should predecease me, or if we should die
in a common disaster, then I give, devise, and bequeath my
estate to my four great grandchildren, share and share
alike.
ITEM V:
my good friend,
pennsylvania as
I nominate, constitute and appoint
Romayne Shay McMahon, of Camp Hill,
Executor of this my Last Will and Testament.
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ITEM VII I direct that no Executor or other
fiduciary named, nominated, or appointed n this my Last Will
and Testament shall be required to post any bond or give any
security of any type for any purpose whatsoever, any law or
rule of the Court of the Commonwealth of pennsylvania.or any
other jurisdiction to the contrary notwithstanding.
IN WITNESS WHEREOF, I have hereunto set my hand and
seal this 27 day of August, 1992.
1.~{,,~
Sgned, sealed, published and declared by the said
Dorothy E: AUgustine, the above named Testatrix, as and for
her Last wi1l and Testament, in the presence of us, who at
her request and in her presence and in the presence of each
other, all being present at the same time, have hereunto
subscribed our names as witnesses.
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n.>w.~lk ~~t.h C1.~t{J.l'l f.. J) II}
residing
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PRAECIPE FOR LISTDICi CASE FOR ARCiC~ENT
l~ual be rypewrinen md submitted In dupllc:ue I
TO TIlE PR011iONOT,.\RY, OF a:~IBERL-\.'iD COI::'ITY:
P1eue !!slme wllhln malllr for :he ne:tl:
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. CAPTION OF CASE
(enWw caption musl be Slaled In l'u1I)
In re: Estate of Dorothy E. Augustin, deceased
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Orphans' Court
Estate No. 21-95-392
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SUlle mattct 10 be :lfiUed (L c.. jlWndirs motion for new 1n:U.
defendant's demwnr 10 ~ompWnt. 4\c.i:
. Petition for Grant of Letters of Administration.
Identify counsel wllo wU1 &fIUC ~3Se:
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(a)
(b)
for I'\flMlt'fl Petitioner: Nark E. Ilalbruner, Esq., Lowell R.
Address: 600 North 12th St., Lemoyne, PA 17043
Cor diiicud:IYn. Respondent: Shsron K. Richter, pro se
Address: 308 Linden Court, Noncks Corner, SC 29461
3. I wU1 n011fy :aI1 puties in ....rillng wi:!lln twO day, :.'Ul :lu.s ~3Se Ius been
IIsllld for :lfiUmenl. _
4.
Argument Court Date:
Call of Argument List
August 16~ ~
Date: ~
111A
I,Allomel' for Petitioner)
Daled: 7 -10 -95
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IN RE: ESTATE OF DOROTHY E.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-95-392
AUGUSTINE, DECEASED
PRAECIPE TO REVOKE RENUNCIATION
TO THE CLERK:
Please revoke the Renunciation filed by me in favor of
Chester C. Crone in the above-captioned Estate.
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HAY McMAHON .
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CERTIFICATE OF SERVICE
James D. Cameron, Attorney for Nominee-Executrix, hereby
certifies that he served a copy of the foregoing praecipe to
Rev9ke Renunciation by hand-delivering a copy of same, this
~ day of August, 1995, to:
Mark E. Ha1brunner, Esq.
LOWELL R. GATES, P.C.
600 North Twelfth Street
Lemoyne, PA 17043
James D. Cameron, Attorney for Nominee-Executrix, hereby
certifies that he served a copy of the foregoing praecipe to
Revoke Renunciation by mailing a copy of same by ordinary mail on
the ~ day of August, 1995, addressed as follows:
Sharon K. Richter
308 Linden Court
Moncks Corner, SC 29461
am s D. Cameron
13 North Front Street
risburg, PA 17102
17) 236-3755
Attorney I.D. No. 58998
Attorney for Nominee-Executrix
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IN RE: ESTATE OF DOROTHY E.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: ORPHANS' COURT DIVISION
: NO. 21-95-392
AUGUSTINE, DECEASED
PRAECIPE TO REVOKE PETITION FOR GRANT OF LETTERS
TO THE CLERK:
Please revoke the petition for Grant of Letters filed by me
in the above-captioned Estate.
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CHESTER C. CRONE
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IN REI ESTATE OF DOROTHY E.
AUGUSTINE, DECEASED
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-95-392
ANSWER OF RONAYNE SHAY McMAlION. AS NOMINEE-EXECUTRIX
OF THE ESTATE OF DOROTHY E. AUGUSTINE. TO PETITION
FOR GRANT OF LETTERS OF ADMINISTRATION
1. Admitted. By way of further answer, the decedent,
Dorothy E. Augustine, spells her last name "Augustine" and
"Augustin" on evidences of ownership.
2. Admitted in part, denied in part. It is admitted that
the address is that of Petitioner. It is denied that Petitioner
is the adopted son of the decedent. After reasonable
investigation, Nominee-Executrix is without information
sufficient to form a belief as to the truth of the said averment,
and the same is deemed to be denied, put at issue, and proof is
hereby demanded.
3. Admitted.
4. Admitted in part, denied in part. It is admitted that
Sharon K. Richter is the sole child of the decedent's predeceased
natural daughter, Betty Hiott. It is admitted that both
individuals are sui juris. It is denied, however, that
Petitioner is the legally adopted son of the decedent. After
reasonable investigation, Nominee-Executrix is without
information sufficient to form a belief as to the truth of the
said averment, and the same is deemed to be denied, put at issue,
and proof is hereby demanded. By way of further answer, Sharon
K. Richter is the residual beneficiary under the Last will and
Testament of the decedent, a copy of which is attached hereto,
identified as "Exhibit A", and made a part hereof.
5. Admitted. By way of further answer, Chester C. Crone
has filed herewith a Praecipe to withdraw his Petition, a copy of
which is attached hereto, identified as "Exhibit B", and made a
part hereof.
6. Denied as a conclusion of law to which no responsive
pleading is required. By way of further answer, the record of
the Court speaks for itself.
7. Denied. It is specifically denied that the decedent did
not have a valid will at the time of her death. By way of
further answer, the decedent executed her Last will and Testament
on August 27, 1992 (Exhibit A hereto).
B. Admitted in part, denied in part. It is admitted that
the decedent filed for protection under Chapter 13 of the United
states Bankruptcy Code and that the proceeding is docketed at 1-
94-00546. It is denied that Petitioner is unaware of the present
status of the proceeding. After reasonable investigation,
Respondent-Executrix is without information sufficient to form a
belief as to the knowledge or awareness of Petitioner concerning
the decedent's financial affairs, and the same is deemed to be
denied, put at issue, and proof is hereby demanded.
9. Admitted on information and belief.
2
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10. Admitted upon information and belief.
WHEREFORE, Respondent-Executrix respectfully requests this
Honorable Court to:
A. Direct the Register of wills of Cumberland county,
Pennsylvania, to certify the entire record of the decedent's
estate to the Court for resolution of the issues raised herein,
pursuant to 20 Pa.C.S. ~907;
B. Admit to probate the copy of the Last will and Testament
of Dorothy E. Augustine currently held by the Register of wills
of Cumberland County;
C. Appoint she, herself, Executrix of the above-captioned
estate under the Last Will and Testament of Dorothy E. Augustine;
D. Deny the Petition for Grant of Letters of Administration
of Robert G. Augustin; and
E. Hold no other proceeding prior to any hearing on the
validity of the Last Will and Testament of Dorothy E. Augustine.
The proper disposition of the matters raised in the Petition to
Revoke Letters of Administration and Probate Will filed by Robert
G. Augustin depends upon the disposition of the instant Petition.
NEW MATTER (PETITION FOR GRANT OF LETTERS TESTAMENTARY)
11. On August 27, 1992, Dorothy E. Augustine executed a
Last will and Testament, a copy of which is attached hereto,
identified as "Exhibit A", and made a part hereof.
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12. The original Will (Exhibit A) was kept by Dorothy E.
Augustine in her desk drawer with her valuable papers during her
lifetime.
13. After Dorothy E. Augustine's death, Petitioner Robert
G. Augustin "rifled" the desk.
14. After Robert G. Augustin "rifled" the desk, Romayne
Shay McMahon searched the desk and failed to find the original
Last will and Testament of Dorothy E. Augustine.
15. The decedent, Dorothy E. Augustine, was domiciled in
Cumberland County, Pennsylvania at her death, with her last
principal residence being 1298 Letchworth Road, camp Hill,
Cumberland County, Pennsylvania.
16. Dorothy E. Augustine, a widow, age 80, died on February
15, 1995.
17. At her death, Dorothy E. Augustine owned real property
with an estimated value of $100,000.00, and personal property
with an estimated value in excess of $5,000.00.
18. Romayne S. McMahon is the nominated Executrix under the
Last will and Testament of Dorothy E. Augustine, and is over the
age of eighteen (18) years.
19. Romayne McMahon is an experienced businesswoman and the
proprietress of Veronique's Antiques, located at 124 South Market
Street, Mechanicsburg, PA 17055.
4
20. On March 14, 1995, Chester C. Crone filed a Petition
requesting the Register of wills of Cumberland county to admit
Exhibit A to probate and to name him (crone) as Administrator.
21. A Renunciation executed by Romayne McMahon was attached
thereto.
22. The Register of wills Office retained the Petition, the
Renunciation, and the decedent's Last Will and Testament, but
refused to act thereon.
23. The Last will and Testament of Dorothy E. Augustine
submitted was a photocopy as to the signature of the decedent,
but actually had been executed by the two witnesses.
24. Chester C. Crone and Romayne McMahon have each filed
praecipes to withdraw the Petition and the Renunciation and
Request this day, copies of which are attached hereto, identified
as "Exhibit B" and "Exhibit C", respectively, and made a part
hereof.
25. If, arguendo, the Court were to determine that the
photocopy of the Last will and Testament of Dorothy E. Augustine
currently held by the Register of Wills Office should not be
admitted to probate, then the right to administer the Estate
would be determined by 20 Pa.C.S. ~3155(b).
26. If, arguendo, the Court were to make such a
determination, and if it were shown that Robert G. Augustin were
legally adopted, then he and Sharon K. Richter, the only child of
Dorothy E. Augustine's predeceased daughter, Betty Hiott, would
5
~
have an equal right to administer the Estate. 20 Pa.C.S.
~3155(b)(2) .
27. Robert G. Augustin sought the protection of the United
states Bankruptcy Court for the Middle District of Pennsylvania,
Harrisburg Division, as a debtor, in the case docketed as Case
N.D.: 1-94-00481.
28. Robert G. Augustin failed to disclose this fact to the
Court, even though he pled the existence of Dorothy E.
Augustine's bankruptcy filing.
29. Robert G. Augustin "rifled" the desk containing Dorothy
E. Augustine's personal papers without proper authority in the
period immediately following her death.
30. A potentially significant asset of the Estate is a
mortgage of which Robert G. Augustin remains the Mortgagor and
Dorothy E. Augustine was the Mortgagee, creating a conflict of
interest between him and the Estate.
31. A hearing was held before the Hon. Edgar B. Bayley on
July 16, 1990, whereupon, it is believed, a restraining order was
entered against Robert G. Augustin, prohibiting any contact with
Dorothy E. Augustine at her residence. Notice was given to
Robert G. Augustin and the Chief of Police of Lower Allen
Township by Dorothy E. Augustine's attorney, pursuant to
Pa.C.S.A. ~3503(b)(1)(i) (defiant tresspass).
32. Robert G. Augustin is not a person who would "best
administer the Estate", as that phrase was contemplated by the
6
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legislature in enacting the statute now codified at 20 Pa.C.S.
!i3155(b) (3).
WHEREFORE, Romayne McMahon, Nominee-Executrix of the Estate
of Dorothy E. Augustine, respectfully requests this Honorable
Court to:
A. Determine that the document entitled Last will and
Testament of Dorothy E. Augustine currently held by the
Cumberland County Register of Wills is the Last Will and
Testament of Dorothy E. Augustine; and
B. Grant Letters Testamentary upon the Estate of Dorothy E.
Augustine, deceased, to Romayne Shay McMahon.
Respectfully Submitted,
am s D. Cameron
32 North Front street
risburg, PA 17102
(717) 236-3755
Attorney 1.0. No. 58998
Attorney for Nominee-Executrix
7
CERTIFICATE OF SERVICE
James D. Cameron, Attorney for Nominee-Executrix, hereby
certifies that he served a copy of the foregoing Answer of
Romayne McMahon, as Nominee-Executrix of the Estate of Dorothy E.
Augustine, to Petition for Grant of Letters, by hand-delivering a
copy of same, this ,~h day of August, 1995, to:
Mark E. Halbrunner, Esq.
LOWELL R. GATES, P.C.
600 North Twelfth Street
Lemoyne, PA 17043
James D. Cameron, Attorney for Nominee-Executrix, hereby
certifies that he served a copy of the foregoing Answer of
Romayne McMahon, as Nominee-Executrix of the Estate of Dorothy E.
Augustine, to Petition for Grant of Letters, by mailing a copy of
same by ordinary mail on the "~h day of August, 1995, addressed
as follows:
Sharon K. Richter
308 Linden Court
Moncks Corner, SC 29461
D. Cameron
1 2 North Front street
Ha risburg, PA 17102
(717) 236-3755
Attorney 1.0. No. 58998
Attorney for Nominee-Executrix
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LAST WILL AND TESTAMENT
OF
.
DOROTHY E. AUGUSTINE
I, DOROTHY E. AUGUSTINE, o~ Camp Hill, Cumberland
County, Pennsylvania, being of sound mind, memory and
understanding, do make, publish and declare this to be my
Last Will and Testament, hereby revoking all other Wills by
me at anytime heretofore made.
ITEM II
funeral expenses ~rom
~ollowing my death.
ITEM III I give, devise and bequeath my
diamond rings to my great-granddaughter Jenna Marie Ricther.
Direct payment of my just debts and
my estate as soon as practicable
ITEM 1111 I give, devise and bequeath the rest,
residue and remainder of my estate, Whether real or
personal, or wheresoever the same may be situate, to my
granddaughter, Sharon K. Ricther.
ITEM IV, In the event that my granddaughter,
Sharon K. Ricther should predecease me, or if we should die
in a common disaster, then I give, deVise, and bequeath my
estate to my four great grandchildren, share and share
alike.
ITEM VI
my good friend,
Pennsylvania as
I nominate, constitute and appoint
Romayne Shay McMahon, of Camp Hill,
Executor of this my Last Will and Testament.
ITEM VII I direct that no Executor or other
fiduciary named, nominated, or appointed n this my Last Will
and Testament shall be required to post any bond or give any
security of any type for any purpose whatsoever, any law or
rule of the Court of the Commonwealth of pennsylvania or any
other jurisdiction to the contrary notwithstanding.
IN WITNESS WHEREOF, I have hereunto set my hand and
seal this 27 day of August, 1992.
sworn and IUblC Ibad belora me 111!s., ./} ':/ / r-' /~
dey . C. lP.2..- 11(~1 ?'" ~~
DorothY~E/~AU9Usti
Sgned, sealed, published and declared by the said
Dorothy E: Aqgustine, the above named Testatrix, as and for
her Last W1'll and Testament, in the presence of us, who at
her request and in her presence and in the presence of each
other, all being present at the same time, have hereunto
subscribed our names as witnesses.
St~ W-<tJ
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residing nJ'w."'Pv. ~~lJ.; f'A...fll{l.l./ (l J) II.}
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IN REI
ESTATE OF DOROTHY I
E. AUGUSTIN, deceased I
I
I
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
ESTATE NO. 21-95-392
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF CUMBERLAND
Be it known. tha t on the c2 9111 day of /)/(11 If,~ -I-
before me, the subscriber. a Notary public, pe?sonally
MARK E. HALBRUNER, who, being duly sworn according to
depose and state as follows:
1. I am an attorney licensed to practice law in the
Commonwealth of pennsylvania, and I am employed by the law firm of
Lowell R. Gates, P.C., Lemoyne, pennsylvania.
, 1995,
appeared
law, did
2. My firm represents Robert G. Augustin in connection with
a petition for Grant of Letters of Administration which was filed
on his behalf in the Estate of Dorothy E. Augustin.
3. On May 25, 1995, I served the aforementioned petition and
the accompanying rule on Sharon K. Richter by certified mail,
return receipt requested.
4. On May 27, 1995. Sharon K. Richter accepted delivery of
the petition and rule. A photocopy of the Domestic Return Receipt
is attached hereto as Exhibit 1. The original Domestic Return
Receipt is attached as Exhibit 1 to an Affidavit of Service filed
of even date herewith in the Estate of Sylvester E. Augustin,
Cumberland County Orphans' Court No. 21-92-190.
111ft! #!: .'1/ IV)
MARK l(~B~
SWORN AND
of ~'-I!} u .<;,---f-'
SUBSCRIBED before me, a Notary Public, this ~/day
, 1995.
otary Public
My commission Expires:
Notarial Seal
Janat C. Naclerio. Notary Public
Lomoyne Sora. Cumberland CounlV
My Commission Expire. April 19. 1999
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James D. Cameron, Esq.
1327 North Front street
Harrisburg, PA 17102
Attorney for Nominee-Executrix
Sharon K. Richter
308 Linden Court
Honcks Corner, SC 29461
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IN REI
ESTATE OF DOROTHY I
E. AUGUSTIN, deceased I
I
I
I
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
ESTATE NO. 21-95-392
PETITIONER'S REPLY TO NEW MATTER OF ROMAYNE SHAY McMAHON
AND NOW, comes Robert G. Augus tin (herein II peti tioner") by and
through his attorneys, Lowell R. Gates, p.e., and makes the
following reply to the New Matter raised by Romayne Shay McMahon in
her answer to the petition for Grant of Letters of Administration
in the above-captioned estate:
11. After reasonable investigation, petitioner is without
knowledge or information sufficient to form a belief as to the
truth of the averments stated in paragraph 11 of the New Matter,
and proof thereof is demanded if relevant.
12. After reasonable investigation, Petitioner is without
knowledge or information sufficient to form a belief as to the
truth of the averments stated in Paragraph 12 of the New Matter,
and proof thereof is demanded if relevant.
13. Admitted in part and denied in part. It is admitted that
following the death of his mother, Dorothy E. Augustin, Petitioner
searched her desk in order to find the will of his deceased father,
Sylvester E. Augustin. To the extent it is implied that Petitioner
wrongfully searched his mother's desk, the same is denied.
14. After reasonable investigation, petitioner is without
knowledge or information sufficient to form a belief as to the
truth of the averments stated in Paragraph 14 of the New Matter,
and proof thereof is demanded if relevant.
15. Admitted.
16. Admitted.
17. After reasonable investigation, Petitioner is without
knowledge or information sufficient to form a belief as to the
truth of the averments stated in paragraph 17 of the New Matter,
and proof thereof is demanded if relevant.
18. Admitted in part and denied in part. It is admitted that
Romayne S. McMahon is over the age of eighteen years and that she
is the nominated executrix in the purported will of Dorothy E.
Augustin which is attached to the Answer with New Matter filed by
Ms. McMahon. It is denied as a conclusion of law that said
purported will is a valid will which should be admitted to probate.
19. After reasonable investigation, Petitioner is without
knowledge or information sufficient to form a belief as to the
truth of the averments stated in paragraph 19 of the New Matter and
proof thereof is demanded if relevant.
20. Admitted.
21. Admitted.
22. Admitted in part and denied in part. It is admitted that
the Register of Wills retained and refused to act upon the petition
filed by Chester C. Crone, the renunciation executed by Romayne S.
McMahon and the document purported to be the will of Dorothy E.
Augustin. It is denied as a conclusion of law that said purported
2
will is a valid will which should be admitted to probate.
23. Admitted in part and denied in part. It is admitted that
the purported will filed with the petition of Chester C. Crone is
a photocopy as to the purported signature of Dorothy E. Augustin
and that there are two original signatures on said purported will.
It is denied as a conclusion of law that said purported will is a
valid will which should be admitted to probate. After reasonable
investigation, Petitioner is without knowledge or information
sufficient to form a belief as to whether the original signatures
appearing on said purported will were made by persons who witnessed
the execution of said purported will, and proof thereof is demanded
if relevant. Petitioner is also without knOwledge or information
sufficient to form a belief as to whether the original and
photocopied signatures appearing on said purported will were made
by the persons whose names were signed, and proof thereof is
demaanded if relevant.
24. Admi tted.
25. Denied as a conclusion of law requiring no responsive
pleading. To the extent a response is required, given the facts
assumed in paragraph 25 of the New Matter, the selection of an
administrator would be governed generally by the Pennsylvania
Probate, Estates and Fiduciaries Code, 20 Pa.C.S. ~~101 ~ sea, and
other applicable principles of law.
26. Denied as a conclusion of law requiring no responsive
pleading. To the extent a response is required, given the facts
3
assumed in Paragraph 26 of the New Matter, Ro~ert G. Augustin and
Sharon K. Richter would be considered as candidates to administer
the estate of Dorothy E. Augustin under the Pennsylvania Probate,
Estates and Fiduciaries Code, 20 Pa.c.S. ~~101 et sea, and other
applicable principles of law. By way of further answer, the
adoption of Robert G. Augustin by Dorothy E. Augustin and SYlvester
E. Augustin is a matter of public record appearing in CUmberland
County Orphans' Court Docket No. 55-1966.
27. Admitted. By way of further answer, Petitioner sought
protection under Chapter 13 of the United States Bankruptcy Code
which provides for the debt restructure of individuals with regular
income.
28. Admitted in part and denied in part. It is admitted that
the existence of Dorothy E. Augustin'S bankruptcy filing was pled
in the petition for Grant of Letters of Administration. It is
further admitted that Petitioner did not plead the existence of his
own bankruptcy filing. To the extent it is implied that said
failure to plead was improper or misleading, the same is denied.
Petitioner'S Chapter 13 bankruptcy filing has been dismissed.
29. Denied as a conclusion of law requiring no responsive
pleading.
30. Admitted in part and denied in part. It is admitted that
the estate of Dorothy E. Augustin contains a mortgage granted by
petitioner, as mortgagor, to Dorothy E. Augustin, as mortgagee. It
is denied as a conclusion of law that the existence of said
4
'-,
mortgage creates a conflict of interest between Petitioner and the
estate of Dorothy E. Augustin.
31. Admitted. By way of further answer, Petitioner received
correspondence dated August 10, 1990, from Dorothy E. Augustin's
attorney, John M. Glace, informing petitioner that Mrs. Augustin
rescinded the prohibition described in paragraph 31 of the New
Matter.
petitionor also received a photocopy of correspondence
dated August 27, 1990, from Attorney Glace to the Lower Allen
Township Chief of Police and District Justice Charles Clement
informing them of the aforesaid rescission and the reconciliation
between Petitioner and Dorothy E. Augustin.
Photocopies of the
AuguSt: 10 and August 27 letters are attached hereto as Exhibit "A".
32. Denied as a conclusion of law requiring no responsive
pleading.
WHEREFORE, Petitioner respectfully requests that the
Court direct the Cumberland County Register of Wills to grant
letters of administration to petitioner.
Respectfully submitted,
LOWELL R. GATES, P.C.
By:f}-llll If', '1 / /T}
Mark E. Hal~SqUire
Supreme Court I.D. #66737
600 North 12th Street
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for petitioner)
DATED:
'1- 2.. 7
, 1995
. '
5
VERIFICATION
The foregoing reply is based upon information which has been
gathered by my counsel in preparation of this matter. The language
of the document is that of counsel and is not my own. I have read
the document, and to the extent that it is based upon information
which I have given to my counsel, it is true and correct to the
best of my knOWledge, information and belief. To the extent that
the content of the document is that of counoel, I have relied upon
!'
counsel in making this verification.
This statement and
verification are made SUbject to the penalties of 18 Pa.C.S. S4904
relating to unsworn falsification to authorities, which provides
that if I make knowingly false averments, I may be subject to
criminal penalties.
-~-;/c-~_../
Robert G. Augustin
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CERTIFICATE OF SERVICE
I, Mark E. Halbruner, Esquire, of the law firm of Lowell R.
Gates, P.C., hereby certify that I served a true and correct copy
of the foregoing Petitioner's Reply to New Matter of Romayne shay
McMahon, on this date, by first-class United States mail. to the
following counsel of record as follows:
James D. Cameron, Esquire
1327 North Front Street
Harrisburg, PA 17102
(Attorney for Romayne S. McMahon)
LOWELL R. GATES. P.C.
By:iJl//JAf [. Ju:J2
Mark E. Halbruner
600 North 12th Street
Suite 2
Lemoyne, PA 17043
sup. Ct. I.D. #66737
(717) 731-9600
Dated: sePtember~, 1995
CVI.IIAIT A
,
JOUN n totANCME
P nlCUARD WAGNER
DAVID E UERSHEY
JOUN tot GlAC!
BEnNARD L COATES, In
lAW o"Iers ~
MANCKE AND WAGNER
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HAnmsDuno, PA 17110 vJ;;- ~(
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ARIA COOl" '7
234-7051
Augus I; 1lJ, 199U
Mr. Robel't. Augustine
32:l Slxt.h St.reet.
New Gumhel'1Rnd, PA 1707u
Re: S. E. Augus I; I ne
Deal Robert:
Your mat.hel' has asked me tu cuntact you to notify you that she
rescinds all previous requests not to trespass and demands for return
of pre-payment.s fot' PI'ofess lana 1 serv ices. Because of the t. ime
demands uf care fOl' your father as well as t.he t.lme required to
manage all t.he Hal-rlsburg pr'oper'tles, she fs begllllllng t.o be
OVI'!l'whelmed by the responsibil ft.y. By earl IeI" letter, she has
I'p.quest.ed ret.urn of mon I es pa I d to you fal' serv fc:es not rendered.
Sloe wishes to not.lfy you t.hat. she has nevel' hsd any complaint. with
any servke you have fully rendered and wishes t.o solicit. your aid in
priurltizlng what wOl'k needs t.o be dune on I;he Ploperties Bnd what
cost.s are required.
This lett.el' is being sent; via fil'sl; class mall benause it, has
come t,o my att.ent.I,,,, I;hat. uften timeR registered mall goeR
unanswered. Also, by eopy of t,hls let.t;er, r alii not.ifylng your
at.torney, Barbara Sumple-Sull Ivan, EsqUire, i" ol'der to facilitate
t.he most cost-effect.lve accornmodatlon to t,Ioe above situation.
Your attention to this matter including all aasistance you could
provide your mother would be greatly appreciated, I would offer this
office as a mut.ually accept.able lucal,lon t.o discuss management of t.he
Han'lsburg propert.les and dispoRlt.lon of any circumstances relat.ed tu
youl' fa thel" s 1 Inger i ng ill ness.
Vel'y truly yours,
JMGjld
no: Dt)t'ot.hy AUgllS t.1 ne
Sarbar'a Sumple-SUll Ivan
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WAGNER
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IN RE: ESTATE OF DOROTHY E.
AUGUSTINE, DECEASED
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-95-392
MOTION FOR MODIFICATION OF ORDER OF COURT
AND NOW, this 14th day of November, 1995, comes Romayne Shay
McMahon, Nominee-Executrix of the Estate of Dorothy E. Augustine,
deceased, by and through her attorney, James D. Cameron, who
respectfully represents:
1. The decedent, Dorothy E. Augustine, died February 15,
1995.
2. On or about March 14, 1995, a photocopy of the Last will
and Testament of Dorothy E. Augustine, dated August 27, 1992,
bearing the original signatures of two witnesses (hereinafter the
"Will") was offered to the Register of wills for probate by
Chester C. crone, a friend and employer of the decedent.
_ 3. Simultaneously, Romayne Shay McMahon, also a friend and
employer of the decedent, and the nominated executrix under the
Will, filed a Renunciation in favor of Chester C. Crone, and Mr.
Crone filed a Petition for Grant of Letters.
4. On or about May B, 1995, Petitioner Robert G. Augustin
filed a Petition for Grant of Letters of Administration
(hereinafter the "Petition"). The Petition was directed to the
Court of Common Pleas of Cumberland County and sought a rule to
show cause.
._-....---..,~ -
5. The Register of Wills has original jurisdiction of
probate and the grant of letters to a personal representative, as
set forth in 20 Pa.C.S.A. ~901. Thus, the Court lacked subject
matter jurisdiction to consider the Petition of Mr. Augustin.
6. The Register of wills had not yet acted upon the will
offered for probate, nor had the Register certified the matter to
the court, so the Court did not yet have appellate jurisdiction,
as provided for by 20 Pa.C.S.A. ~908 or id., ~907, respectively.
7. Nevertheless, on or about May 15, 1995, the Court issued
the Rule requested, directed to Sharon K. Richter, returnable
twenty days from service.
8. On or about June 12, 1995, Sharon K. Richter filed an
Answer to the Petition.
9. On or about August 15, 1995, Respondent McMahon filed an
Answer with New Matter to the petition, the said New Matter
constituting a Petition for Grant of Letters.
10. Respondent McMahon filed with her New Matter a praecipe
to revoke the Renunciation she had previously filed with the
Register of wills.
11. simultaneously, Chester C. Crone filed a praecipe to
withdraw the Petition for Grant of Letters he had previously
filed with the Register of wills.
12. Respondent McMahon's Answer to the Petition was timely,
as she had not been served with either the Petition or the RUle
previously issued by the Court.
2
13. Petitioner Augustin listed the matter for oral
argument, even though the Register had not yet issued any decree
or order, and the Court heard oral argument upon the Petition on
August 16, 1995.
14. On September 13, 1995, the Court issued an Order,
remanding the matter to the Register of Wills, for her
determination as to Petitioner's suitability to administer the
estate pursuant to 20 Pa.C.S. ~3155(b)(3). A copy of the Order
is attached hereto, made a part hereof, and identified as
"Exhibit A".
15. Petitioner AUgustin has taken the position (by means of
a letter from his attorney to the Register of Wills) that the
Order of September 13, 1995 precludes consideration of the
validity of the Will previously submitted to probate, and that
the Register should "ignore" the decedent's Will. A copy of this
letter is attached hereto, made a part hereof, identified as
"Exhibit B".
16. Respondent believes the Court's Order dated September
13, 1995, to be silent on the question of the validity of the
Will previously offered for probate as a result of the procedural
improprieties which led to the issuance of the order, namely, the
filing of Petitioner Augustin's Petition with the Court rather
than the Register of Wills, and his subsequent listing of the
Petition for oral argument.
-'-_..._,w~_
3
17. Petitioner Augustin urges that the will be ignored and
that he be appointed as administrator in intestacy.
lB. However, if the photocopy of the will previously
offered for probate is determined to be a valid testamentary
writing, letters testamentary instead should be granted unto
Respondent MCMahon, in accordance with Item V of the Will,
pursuant to 20 Pa.C.s. ~3155(a).
19. Petitioner's suitability to administer the Estate would
only become an issue if the photocopy of the will offered for
probate were found to be invalid.
20. The Solicitor to the Register of Wills, through a
member of his firm, Ralph H. wright, Jr., Esq., wrote a letter to
the Honorable J. Wesley Oler, dated October 31, 1995, concerning
modification of the Order of September 13, 1995. A copy of the
letter is attached hereto, made a part hereof, identified as
"Exhibit C".
21. Respondent McMahon believes it would be proper for the
Court to modify its order sua sponte in the manner recommended by
Attorney Wright.
22. Nevertheless, Respondent McMahon has concluded it to be
necessary to file the instant Motion in order to both clarify the
record and protect her rights to due process with respect to this
matter.
4
--""" '''\-----"._-----'_.._..,'''''-----..,..,
WHEREFORE, Respondent McMahon respectfully requests this
Honorable Court to modify the Order dated September 13, 1995,
remanding this matter to the Register of Wills, directing her to
hold a hearing in order to determine the validity of the
photocopy of the Last Will and Testament of Dorothy E. Augustine,
dated August 27, 1995, previously offered for probate.
Respectfully SUbmitted,
D. Cam on
North Front Street
ar. isburg, PA 17102
( 7) 236-3755
Attorney I.D. No. 58998
Attorney for Respondent
Romayne Shay McMahon
5
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CERTIFICATE OF SERVICE
James D. Cameron, Attorney for Respondent Romayne Shay
McMahon, hereby certifies that he served a copy of the foregoing
Motion for Modification of Order of Court by mailing a copy of
the same, first class mail, postage pre-paid, on the 16th day of
November, 1995, addressed as follows:
Mark E. Halbruner, Esq.
LOWELL R. GATES, P.C.
600 North Twelfth Street
Lemoyne, PA 17043
Sharon K. Richter
308 Linden Court
Moncks Corner, SC 29461
v?
s D. Cameron
North Front Street
H risburg, PA 17102
(717) 236-3755
Attorney I.D. No. 58998
Attorney for Respondent
Romayne Shay McMahon
AU.II-"'U"'" -...." totl 1lI1C,a..O <i)
Exhibit A
IN REI ESTATE OF
DOROTHY E. AUGUSTIN,
Deceased
I
I
I
IN 'rHE COUR'!' OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPIIANS' COURT DIVISION
I
I ESTATE NO. 21-95-392
IN REI PETITION FOR GRANT OF LETTERS
OF ADMINISTRATION
BEFORE SUEELY. P.J. and OLER. J.
ORDER OF COURT
AND NOW, this \:,1l, day of September, 1995, upon careful
consideration of the foregoing Petition for Grant of Letters of
Administration and Respondent's Answer, we remand the petition to
the Register of Wills for determination of Petitioner's suitability
to administer the letters pursuant to 20 Pa. C.S.A. S3l55(b)(3).'
In so doing we note that the "granting of letters of
administration by the Register of wills is a judicial act, and the
remedy of an aggrieved party is to appeal to the Orphans' Court
... .
,,2
BY TilE COURT,
J.
Mark E. Halbruner, Esq.
600 North 12th Street
Lemoyne, PA 17043
Attorney for Petitioner
Act of April 16, 1992, P.L. lOB, S4, as amended, 20 Pa.
C.S.A. S3155(b) (3).
2 Brokans v. Melnick, 391 Pa. Super. 21, 27, 569 A.2d 1373,
1375 (1990).
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.
~mes D. Cameron, Esq.
327 North Front street
\ Harrisburg, PA 17102
Attorney for Nominee-Executrix
Sharon K. Richter
30B Linden Court
Moncke Corner, SC 29461
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October. 23. 1995
Mary C. Lewis. Register of Wills
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
IN RE: Estate of Dorothy B. AUgustin, deceased I
Bstate No. 21.95'392
Dear Ms. Lewis:
In reqard to the above'referenced matter, I am writing in
response to Attorney James D. Cameron's correspondence to YOU dated
October 19, 1995. First, my previous correspondence to YOU was not
an attempt to circumvent the '. proper procedural couse but was
intended to expedite your decision and avoid needless cost to the
parties inVOlved. Accordingly, I provided Mr. Cameron with a copy
of my letter so that he could respond to the arguments r presented.
With the exception of my reference to Robert G. AUgustin'S activity
as an electrical contractor in the CarliSle area. the facts stated
in my letter appear in the pleadings already filed in this matter.
Likewise, the legal arquments made in my letter are contained in
the brief r previOUSly submitted in this matter.
Second, ~r. Cameron has apparently misunderstood the Orphans'
Court order of September 13, 1995. The order clearly directs that
your office determine whether Robert G. Augustin, the petitioner,
is suitable to administer the estate of Dorothy E. Auqustin. The
order makes no mention of a will nor <loss the order ask you to
consider Mr. cameron's client, Romayne S. MCMahon, as an
alternative choice for administrator.
Third, I take exception to Mr. Cameron's statement that the
document now in your possession is a valid will. The document is
a photocopy of what mayor may not be a valid will. Without an
original signature or mark by Dorothy E. Augustin or an original
siqnature of Someone actinq at her direction. the document is not
by itself a valid will.
In sununary, r believe that you can reach a decision based upon
the facts already submi tted in this matter. but I will Cooperate if
either yOU or Mr. Cameron find it necessary to engage in more
formal proceedingo. Whichever procor.iural courae is taken. .t
request that yoU limit your decision to the iasue preaented in the
"
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Mary C. Lewis, Register of Wills
October ~3, 1995
Page 2
September 13. 1995 order. In other words. I ask that you ignnre
ehe purported will offered by Ms. McMahon and determine whether
Robert G. Augustin should receive leteers of administration.
Thank you for your attention to this matter.
1~~rY 4;y~Yoursp-'
/ t1tr,..ti c. . ~ -
Mark E!. 'Hal n
cc: Robert G. Augustin
Sharon K. Richtor
James D. Cameron, Esquire
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C, ROY WEIDNER, JR,
EDMUND C, MYERS
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D^VID W, D.LUCE
RAlPH It WRICHT. 1R.
D^VID I. LAN~
IO$EPH L, HITCHINGS
LAW OFFICES
JOHNSON, DUFFIE, STEWART & WEIDNER
301 M^RKET STREET
P. 0, BOX 109
LEMOYNE. PENNSYLV^NI^ 17043 .0109
TEUNIONE 717.761.1540
TELECOPIER 717.761.)015
(S@[P\7
October 31, 1995
The Honorable J. Wesley Oler, Jr.
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
Re: Estate of Dorothy E. Augustin, Deceased
No. 21.95.392
Dear Judge Oler:
As I believe you know, Jerry Duffie of this firm Is Solicitor to the Cumberland County
Register of Wills. I fraquently assist Jerry in his counsel to the Reglstar of Wills. It Is unclear
how the above.referenced matter came before yourself and President Judge Sheely. We note
that the Petition of Robert G. Augustin for Grant of Letters of Administration was directed to
the Court of Common Pleas, rather than to the Register of Wills. As provided at 20 Pa.C.S.A
~ 901, the Register of Wills has original Jurisdiction of probate and the grant of letters.
Accordingly, the Court, by Order datad September 13, 1995, remanded Mr. Augustin's
Petition to the Register of Wills for a determination of the Petitioner's suiteblllty to administer
the letters.
For the reasons we set forth below, we are requesting that the Court modify Its Order.
We would raspactfully request that the matter of the Estate of Dorothy E. Augustin be
remanded to the Register of Wills, first for disposition of the Petition of Romayne Shay
McMahon for Grant of Letters Testamentary, the granting of which Petition requires the
admission to probate of a photocopy of the writing titied "Last Will and Testament of Dorothy
E. Augustin", dated August 27, 1992, and such subsequent action on the Petition of Robert
G. Augustin for Grant of Letters of Administration as shall be appropriate.
As we understand the facts In this matter, Chester C. Crone on March 14, 1995 filed
a Petition for Probate and Grant of Letters In the Estate of Dorothy E. Augustine, with which
was offered for probate a photocopy of a writing bearing the apparent signature of Dorothy
E. Augustine, titled "Last Will and Testament of Dorothy E. Augustine". The photocopy bore
the original signatures of two witnesses. Chester Crone did not have legal counsel at tha time
his Petition was offered. It is our understanding that Mr. Crone was advised that a petition
The Honorable J. Wesley Oler, Jr.
October 31, 1995
Page 2
to have a photocopy of e will submitted to probate would be necessery, end he should seek
the assistance of counsel.
We note that In averment No. 6 of Mr. Augustin's Petition It is statad thet the
Cumberland County Reglstor of Wills has refused to grant [Mr. Crone'sl Petition for Probate
and Grant of Letters. On Its face, the averment was accurata. However, Mr. Crone's Petition
was not granted because the Petition he had filed wes Inappropriate given the nature of the
writing which he had offered for probate and because he wes not the nemed executor. Under
Pennsylvania law, before a copy of a will may be admitted for probate, evidence must be
produced that, (1) the original will was duly and properly executed, (21 the contents of the
executed will were substantially as appears on the copy of the will presented for probate, and
(3) the will remelned undestroyed or unrevoked at the time of the testator's death. Further,
when the orlglnel of a will ca'nnot be produced. It is necessary that the presumption of
revocetlon be rebutted. See, e.g. Estate of Wesco. 281 A.2d 877. 879 (1970).
An Answer to the Petition of Mr. Augustin wes filed by Rornayne Shay McMahon, who
was named executrix In tha above-described writing. Ms. McMahon's Answer Included. as
a New Matter. a Petition for Grant of Letters Testamentary. which in fact was a Petition for
the admission to probate of the photocopy which had been originally offered by Chester C.
Krona for probate.
It would seem appropriate to first address the matter of the photocopy which has been
offered for probate as the will of Dorothy E. Augustine. as the threshold question should be
whether there Is an intestacy. If the required evidentiary showings can be made to support
-the admissIon to probate of the photocopy. letters testamantary will be granted to Romeyne
Shey McMahon, the named Executrix named In the writing. Earlier this month we discussed
such a resolution of this matter with your law clerk.
If Ms. McMahon Is unable to furnish sufficient evidence to establish the elements
necessary for admission of the photocopy to probate as the will of Dorothy E. Augustine. the
Register of Wills can then conduct the customary adverse letters proceeding to determine the
Individual best qualified to serve as Administrator. C.T.A.. for the Estete of Dorothy E.
Augustine.
Modification of the Court's Order remanding this matter to the Register of Wills would
appear to be of particular Import. As indicated by the copies of the correspondence which
we have enclosed, counsal for one of the parties has taken the position that the Order of
Court dated September 13, 1995 bars the Register of Wills from Inquiry as to admission to
probate of the photocopy of the writing discussed above. Contrary to the statement set forth
in tha letter of Petitioner's counsel ettached. we have no recollection of having advised the
Register of Wills concerning the filing of the Petition for the grant of letters of administration.
We do recall discussing with the Register's Office the matter of a photocopy of a will offared
for probate.
The Honorable J. Wesley Oler. Jr.
October 31. 1995
Page 3
We appraclate your consideration of this matter. We are 01 the opinion that It should
have come first before tha Raglster of Wills. and then should have come before the Court only
on certification from the Register of Wills or upon petition of one of the parties.
Very truly yours.
JOHNSON. DUFFIE. STEWART 8& WEIDNER
Ralph H. Wright. Jr.
RHW:par:47956
Enclosures
cc: Mark E. Halbruner. Esquire ./
James D. Cameron. Esquire 0/
---~--..._... ----...---.-""... ~
c.
IN REI ESTATE OF DOROTHY I
E. AUGUSTIN, deceased I
I
I
I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
ESTATE NO. 21-95-392
AND NOW,
IN REI MOTION OF ROMAYNE SHAY McMAHON
FOR MODIFICATION OF ORDER OF COURT
BEFORE SHEELY. P.J.. and OLER. J.
ORDER OF COURT
this 2S#.day of January, 1996, upon consideration of
the motion of Romayne Shay McMahon for modification of an order of
court, and in accordance with the letter dated October 31, 1995,
from the office of the solicitor for the Cumberland County Register
of Wills attached hereto, the order of court dated September 13,
1995, is AMENDED to direct that in the first instance the Register
of Wills shall determine whether to admit to probate the document
titled Last Will and Testament of Dorothy E. Augustine, dated
August 27, 1992.
BY THE COURT,
J
Mark E. Halbruner, Esq.
600 North 12th Street
Suite 2
Lemoyne, PA 17043
Attorney for Petitioner
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James D. Cameron, Esq.
1327 North Front Street
Harrisburg, PA 17102
Attorney for Respondent
Sharon K. Richter
30B Linden Court
Moncks Corner, SC 29461
, ,
j.)
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* P.OI *
* TRAHSACTIOH REPORT *
* JAN-29-9B 110N 9134 *
* *
* DATE START RECEIVER TK TIllE PAGES TYPE HOTE *
* *
* JAN-29 9130 97613015 3' 45" B SEHD OK *
* *
***aa***************************************************************************************************
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FAX TRANSMITTAL
"'AX # 761-3015
TO: Ralph Wri.ght, Esq.
ITTN:
.
pauli.ne Barkley
ATE:
CALL (717) 240-6100 FOR ANY INQUIRIES,
,OM:
CoWlty of Cwnberland
One Courthouse Square
Carlisle, PA 17013-3387
FAX # (717) 24{).{)490
'.
PAGE ONE OF Q
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EDMUND G, MYEIU
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D^VID w, D,LUCE
RALPH H, W"-IGfIT, IlL
D^VID I, ~N~
JOSEPH L. HITCHINGS
JOHNSON, DUFFIB, STEWART (I WEIDNER
301 MARKET srnEET
P,O, BOX 109
LEMOYNB, PENNSYLVANIA 170H-0109
CS@)[P)J
TEU!rlIONB 717~761 ~"540
TELECOrlEI\ 717~761~3015
October 31, 1995
The Honorable J. Wesley Oler, Jr.
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
Re: Estate of Dorothy E. Augustin, Deceased
No. 21-95-392
Dear Judge Oler:
As I believe you know, Jerry Duffle of this firm is Solicitor to the Cumberland County
Register of Wills. I frequently assist Jerry in his counsel to the Register of Wills. It is unclear
how the above-referenced matter came before yourself and President Judge Sheely. We note
that the Petition of Robert G. Augustin for Grant of Letters of Administration was directed to
the Court of Common Pleas, rather than to the Register of Wills. As provided at 20 Pa.C.S.A
~ 90 I, the Register of Wills has ori91nal jurisdiction of probate and the grant of latters.
Accordingly, the Court, by Order dated September 13, 1995, remanded Mr. Augustin's
Petition to the Register of Wills for a determination of the Petitioner's suitability to administer
the letters,
For the reasons we set forth below, we are requesting that the Court modify its Order.
We would respectfully request that the matter of the Estate of Dorothy E. Augustin be
remanded to the Register of Wills, first for disposition of the Petition of Romayne Shay
McMahon for Grant of Letters Testamentary, the granting of which Petition requires the
admission to probate of a photocopy of the writing titled "Last Will and Testament of Dorothy
E. Augustin", dated August 27, 1992, and such subsequent action on the Petition of Robert
G. Augustin for Grant of Letters of Administration as shall be appropriate.
As we understand the facts in this matter, Chester C. Crone on March 14, 1995 filed
a Petition for Probate and Grant of Letters In the Estate of Dorothy E. Augustine. with which
was offered for probate a photocopy of a writing bearing the apparent signature of Dorothy
E. Augustine, titled "Last Will and Testament of Dorothy E. Augustine". The photocopy bore
the original signatures of two witnesses. Chester Crone did not have legal counsel at tha time
his Petition was offered. It is our understanding that Mr. Crone was advised that a petition
,
.'
The Honorable J. Wesley Olor. Jr.
Octobar 31, 1995
Pogo 2
"
to have a photocopy of a will submitted to probate would be necessary, and ho should seok
the assistance of counsel.
I:
We note that in averment No. 6 of Mr. Augustin's Petition it Is stated that the
Cumberland County Register of Wills has refused to grant (Mr. Crone'sl Petition for Probate
and Grant of Letters. On Its face, tho averment was accurate. However, Mr. Crone's Petition
,
was not granted because the Petition he had filed was inappropriate given the nature of the
writing which he had offered for probate and because he was not the named executor. Under
Pennsylvania law, before a copy of a will may be admitted lor probate, evidence must be
produced that. (11 the original will was duly and properly executed, (2) the contents of the
executed will were substantially as appears on the copy of the will presented for probate, and
(3) the will remained undestroyed or unrevoked at the timo of the testator's death. Further,
when the original of a will ca'nnot be produced, it Is necessary that the presumption of
revocation be rebutted. See. e,g. Estate of Wasco, 281 A.2d 877, 879 (1970).
An Answer to the Petition of Mr. Augustin was filed by Romayne Shay McMahon, who
was named executrix in the above.described writing, Ms. McMahon's Answer included, as
a New Matter, a Petition for Grant of Letters Testamentary, which in fact was a Petition for
the admission to probate of the photocopy which had been originally offered by Chester C.
Krone for probate.
It would seem appropriate to first address the mattor of the photocopy which has been
offered for probate as the will of Dorothy E. Augustine, as the threshold question should be
whether there is an intestacy. If the required evidentiary showings can be made to support
the admission to probate of the photocopy, letters testamentary will be granted to Romayne
Shay McMahon, the named Executrix named in the writing, Earlier this month we discussed
such a resolution of this matter with your law clerk,
If Ms. McMahon Is unable to furnish sufficient evidence to establish the elements
necessary for admission of the photocopy to probate as the will of Dorothy E. Augustine, the
Register of Wills can then conduct the customary adverse lettors proceeding to determine the
individual best qualified to serve as Administrator, C.T.A., for the Estate 01 Dorothy E.
Augustine.
Modification of the Court's Order remanding this matter to the Register of Wills would
appear to be of particular import. As indicated by the copies of the correspondence which
we have enclosed, counsel for one of the parties has taken the position that the Order 01
Court dated September 13, 1995 bars the Register of Wills Irom inquiry as to admission to
probate 01 the photocopy of the writing discussed above. Contrary to the statement set forth
in the letter of Petitioner's counsel attached, we have no recollection of having advised the
Register of Wills concerning the filing of the Petition for the grant 01 letters of administration.
We do recall discussing with the Register's Office the matter of a photocopy of a will offered
for probate.
The Honoreble J. Wesley Oler, Jr.
October 31,1995
Page 3
We appreclete your consideration of this metter. We ere of tho opinion that It should
have come first before the Roglstor of Wills. and then should hevo como bofore tho Court only
on certlflcetlon from tho Register of Wills or upon petition of one of the pertles.
Vory truly yours.
JOHNSON. DUFFIE. STEWART & WEIDNER
Ralph H. Wright. Jr.
RHW:par:47956
Enclosures
cc: Mark E. Halbrunor. ESQulro ./
James D. Camoron. ESQulro j/
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IN RE: ESTATE OF DOROTHY E.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: ORPHANS' COURT DIVISION
NO. 21 - 95 - 392
AUGUSTINE, DECEASED
STIPULATION
The parties in the above-captioned matter, by and through
their respective counsel, hereby agree to the fOllowing
stipulations:
1. Dorothy E. Augustine (hereinafter "the decedent") died
on February 15, 1995. Her husband, Sylvester E. Augustine,
predeceased her.
2. On August 27, 1992, the decedent executed a document
entitled "Last Will and Testament of Dorothy E. Augustine" before
William Hooper, a notary pUblic.
3. Mr. Hooper notarized the signature of the decedent on
the said document at the decedent's request.
4. Mr. Hooper required the decedent to allow him to examine
her bank identification card in order to prove her identity.
5. Mr. Hooper maintains an office for the rendering of tax
preparation and notary services located at 2561 North sixth
street, Harrisburg, Pennsylvania.
6. Tony Wise and Alfred J. Wadley are real estate agents
who worked with the decedent at Crone Real Estate, 2500-02 North
Sixth street, Harrisburg, Pennsylvania.
,
. .
.'
.
"
7. The document signed by Mr. Wise and Mr. Wadley is the
one-page document which has been offered for probate and has been
retained by the Office of the Register of Wills. A copy of this
document is attached as "Exhibit A" of the Answer of Romayne Shay
McMahon, as Nominee-Executrix of the Estate of Dorothy E.
Augustine, to Petition for Grant of Letters of Administration.
B. This document bears a photocopy of Mr. Hooper's notarial
signature, dated August 27, 1992.
9. Mr. Wise and Mr. Wadley recognize their signatures on
the document.
~f#
witness
)
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D. CAM ON, ESQ.
North Front Street
, risburg, PA 17102
A torney for Romayne S.
McMahon I ,j
Dated: z: Z'e 9'
1 ~
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v~ ( _'
'MARK~ HALBRU R, ESQ.
Gates & Associates, P.C.
1013 Mumma Road, suite 100
Lemoyne, PA 17043
Attorney for Robert G.
Augustin .,) (.., ~ /<;1' "
Dated: -)- ~ 1(,
8#'/
witness .
~/~/
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SHARON K. RICHTER, pro se
701-A Barbecue Church Road
Sanford, NC 27330
Dated: ,l- J .~1 . Qh
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IN RE: ESTATE OF DOROTHY E.
: IN 'l'III~ COUR'I' 01' COMMON PLEAS
CUMIlEllLANJ) COUN'I'Y, PI~NNSYINANIA
ORPHANS' COUll'r 01 VI SION
NO. 21 - 95 - 392
AUGUSTINE, DECEASED
RESPONDENT RONAYNE S. HcMMION'S
EROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND NOW, this 20th day of March, 1996, Romayne S. McMahon,
by and through her attorney, James J). Cameron, hereby
respectfully submits the following proposed findings 01' fact and
conclusions of law to the Register of Wills for her
consideration:
1. Dorothy E. Augustine (hereinafter "the decedent") died
on February 15, 1995. Her husband, sylvester E. Augustine,
predeceased her. (stipUlation, paragraph 1)
2. On August 27, 1992, the decedent executed a dooument
entitled "Last Will and Testament of Dorothy E. Augustine" before
william Hooper, a notary public. (Stipulation, paragraph 2)
3. This original Will was either lost or stolen.
4. Mr. Hooper notarized the signature of the decedent on
the said document at the decedent's request, after examining her
bank identification card in order to prove her identity.
(stipulation, paragraphs 3 and 4)
5. Mr. Hooper maintains an offioe for the rendering of tax
preparation and notary services located at 2561 North sixth
street, Harrisburg, Pennsylvania. (stipUlation, paragraph 5)
6. Tony Wise and Alfred J. Wadley are real estate agents
who worked with the decedent at Crone Real Estate, 2500-02 North
Sixth street, Harrisburg, Pennsylvania. (stipulation, para-
graph 6)
7. On August 27, 1992, the decedent requested Messrs. Wise
and Wadley to execute a photocopied document entitled "Last Will
and Testament of Dorothy E. Augustine".
8. The document signed by Messrs. Wise Wadley is the same
one-page document (hereinafter "R-1"), which has been offered for
probate. A copy of this document is attached as "Exhibit A" of
the Answer and New Matter (Petition) of Romayne S. McMahon to
Robert Augustin's Petition for Grant of Letters of
Administration. The decedent nominated Mrs. McMahon to be
Executrix of her Estate in her Will dated August 27, 1992.
(stipulation, paragraph 7)
9. R-1 bears a photocopy of Mr. Hooper's notarial
signature, dated August 27, 1992. (stipulation, paragraph 8)
10. Messrs. Wise and Wadley recognize their signatures on
R-1. (stipulation, paragraph 9)
11. Messrs. Wise and Wadley recognize the decedent's
signature on R-1.
12. Messrs. Wise and Wadley signed R-1 at the request of
the decedent.
13. The decedent told Messrs. Wise and Wadley that R-l was
her Will when she asked them to sign it.
2
14. Carl stoner was present when Messrs. Wiso and Wadley
signed R-l,
15. Carl stoner, a disbarred attornoy, may have assisted
the decedent in the preparation of tho original documont of which
R-1 is a copy.
16. The decedent told Mr. Wiso on sovoral occasions that
she wished to give her estate to hor granddaughtor, Sharon
Richter.
17. Thomas Lehman was a friond of both tho docedent and Mr.
Augustine.
lB. Between September of 1992 and I'obrunry 15, 1995, the
decedent told Mr. Lehman on many occasiono that her
granddaughter, Sharon Richter, was to roooive hor proporty upon
her death.
19. Ted Hiott was the docodent'B Bon-in-low, and is the
father of Sharon Richter.
20. The decedent told Mr. Il10tt on many occnsions that her
granddaughter was to rocoivo hor proporty upon hor death.
21. The decedent affirmod thia to Mr. Hiott during a
telephone conversation approximately ono weok bofore her death.
22. Sharon Richter is the decodont's only natural
grandchild, and is the only child of the decedent's predeceased
natural daughter, Elizaboth Hiott.
23. The decedent had provided Mrs. Richter with a photocopy
of her Will shortly after ahe had oxecuted the original Will.
3
24. At the time she gave her the photocopy, the decedent
told Mrs. Richter it was a copy of her will.
25. The decedent provided Mrs. Richter with another
photocopy of the Will shortly before her death, again stating
that it was a photocopy of her Will.
26. Both of these photocopies are of the will dated August
29, 1992, of which R-1 is an exact photocopy.
27. Mrs. Richter recognizes the decedent's signature on
R-1.
28. The decedent told Mrs. Richter to contact Romayne S.
McMahon after she (the decedent) died, because Mrs. McMahon was
the executrix of her will and she knew where all of the
decedent's important papers were located.
29. Mrs. Richter and Mrs. McMahon did not meet until after
the decedent's death.
30. Mrs. McMahon was a friend and employer of the decedent,
and is the nominated Executrix in her Will.
31. From approximately 1985 until August 27, 1992, the
decedent told Mrs. McMahon that she wished to leave her estate to
her granddaughter, Sharon Richter.
32. The decedent did not have a Will during this period of
time.
33. On or about August 27, 1992, the decedent told Mrs.
McMahon that she had made a will.
4
34. Shortly after she executed her will, the decedent gave
Mrs. McMahon a copy of her will and a key to her house.
35. The copy of the Will given Mrs. McMahon by the decedent
is the same copy which has been offered for probate (R-1).
36. When she handed R-1 to Mrs. McMahon, the decedent told
her that it was a copy of her Last will and Testament.
37. Mrs. McMahon recognizes the decedent's signature on
R-1.
38. At the time she gave Mrs. McMahon R-1, the decedent
told her that she had placed the original Will in the right-hand
drawer of her desk, which was located in the dining room of her
residence.
39. At the time she gave Mrs. McMahon R-1, the decedent
told Mrs. McMahon that she had designated her right-hand desk
drawer as the place where she would keep all of her important
papers, so that Mrs. McMahon would know where to find them in the
event of her death.
40. In the time period between August 27, 1992, and
February 15, 1995, the day she died, the decedent affirmed to
Mrs. McMahon on many occasions that the decedent wished to give
her property to her granddaughter, Sharon Richter, upon her
death.
41. During the time period between August 27, 1992 and the
day of her death, at least two other people resided with the
decedent at her residence.
5
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42. During the time period between August 27, 1992 and the
day of her death, at least three people, including Respondent's
ex-wife, were in the decedent's residence at times when the
decedent was not present.
43. The desk drawer in which the decedent told Mrs. McMahon
she had placed her original will does not have a lock.
44. Robert Augustin was at the decedent's residence within
hours of her death.
45. When Mrs. McMahon telephoned the decedent's residence
on the evening of the day of her death, Robert Augustin answered
the telephone.
46. During this telephone call, Mrs. McMahon instructed
Robert Augustin that he was not to be in the decedent's
residence, and that he was not to remove anything from the
residence.
47. Robert Augustin rifled the decedent's important papers
in the time period immediately following her death, and before
Mrs. McMahon arrived at the house to retrieve the Will.
48. Robert Augustin removed papers from the decedent's desk
at this time.
49. Robert Augustin had rifled the decedent's desk prior to
her death as well.
50. Carl stoner was also at the decedent's residence within
hours of her death.
6
51. Mrs. McMahon, to whom the decedent had previously given
a key to the house, went to the decedent's residence on the
morning after her death, to retrieve the original will.
52. Mrs. McMahon had never used the key given to her by the
decedent prior to that time.
53. The morning following the death of the decedent, Mrs.
McMahon diligently searched the desk, including the drawer where
the decedent told her she had placed the original Will, but could
not find the original will.
54. Robert Augustin sued the decedent on two occasions
during the several years just prior to her death.
55. The decedent obtained a restraining order against
Robert Augustin from the Court of Common Pleas of Cumberland
county.
56. The decedent and Robert Augustin had an often-hostile
relationship.
57. The decedent owned several rental properties in the
city of Harrisburg which she sold to Robert Augustin, taking back
a mortgage.
58. Robert Augustin failed to make regular payments under
the terms of the mortgage.
59. Robert Augustin's failure to make mortgage payments
caused significant financial and emotional hardship for the
decedent.
7
60. In addition to failing to make regular payments under
the mortgage, Robert Augustin failed to pay all taxes on the
properties, as required by the mortgage.
61. Robert Augustin is still indebted on this mortgage.
62. The outstanding balance of the mortgage, excluding
interest, exceeds $50,000.00.
63. This mortgage is a significant asset of the decedent's
estate.
64. Of more that 2,000 Dauphin County real estate tax
delinquents, Robert Augustin owed the tenth highest amount,
according to a roster dated in the year 1995.
65. Robert Augustin refused to guarantee payment of the
decedent's funeral bill.
66. Robert Augustin did not attend the decedent's funeral.
67. Sharon Richter would inherit virtually the entire
estate under R-1.
68. Sharon Richter prefers to have Romayne McMahon serve as
personal representative of the decedent's Estate.
69. Mrs. McMahon remains willing to serve as personal
representative of the decedent's Estate.
70. Sharon Richter remains willing to serve as personal
representative of the decedent's Estate.
8
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PROPOSED CONCLUSIONS OF LAW
1. The decedent duly executed the original will.
2. The contents of R-1 are exactly the same as the contents
of the original Will.
3. The decedent did not revoke her will prior to her death.
4. R-1 should be admitted to probate as a properly proven,
exact copy of a valid will.
5. Romayne S. McMahon should be appointed as Executrix of
the Estate.
6. Robert Augustin's failure to pay his mortgage to the
decedent timely conflicts with his request to serve as
administrator of the Estate.
7. Robert Augustin's indebtedness to the Estate conflicts
with his request to serve as administrator of the Estate.
8. Robert Augustin's failure to pay his real estate taxes
timely conflicts with his request to serve as administrator of
the Estate.
9. Robert Augustin's pUblic statements about not paying
property taxes when they are due conflicts with the duty of a
personal representative of a decedent's estate to pay all taxes
when due.
9
10. Robert Augustin should not be appointed to administer
the Estate.
Respectfully Submitted,
.:J me
1~2 North Front street
Harrisburg, PA 17102
(717) 236-3755
Attorney I.D. No. 58998
Attorney for Romayne S.
McMahon
a.,
10
IN RE: ESTATE OF DOROTHY E.
AUGUSTINE, DECEASED
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-95-392
RESPONDENT ROMAYNE S. MCMAHON'S BRIEF
IN SUPPORT OF HER
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
On August 27, 1992, Dorothy E. Augustine (hereinafter "the
decedent") executed her Last will and Testament before William
Hooper, a notary pUblic. At her request, two of her co-workers
at the real estate office where she was employed then signed, as
witnesses, a document she identified to them as her will.
At about the same time, the decedent gave a copy of her Will
to Romayne S. McMahon, her friend and employer, who is also
nominated to be Executrix in the will. At the time she handed
the copy to Mrs. McMahon, the decedent instructed her Executrix
that she would place the original will in the right-hand drawer
of the desk located in her dining room.
The decedent died on February 15, 1995, approximately two
and one-half years later.
On the morning after the decedent's death, Mrs. McMahon
searched the desk drawer as instructed by the decedent herself,
but found no original will.
The prior day--just hours after the decedent's death--the
decedent's adoptive son had searched the desk and removed papers
from it. The adoptive son stands to benefit from the
"disappearance" of the will. His ex-wife/girlfriend assisted in
this unlawful search.'
'At the very least this action constituted a common-law
trespass. It may also have constituted breaking and entering,
theft, and the illegal suppression of a will. 18 Pa.C.S. ~4103.
Between the moment of the decedent's death and the next
morning, when her Executrix conducted the authorized will-search,
three other people--in addition to the adoptive son and his ex-
wife/girlfriend--are known to have been in the residence. These
are: two roomers and Carl stoner, a disbarred attorney who may
have assisted in the preparation of the will.
Having failed to locate the original Will, but having
possession of the photocopy given her by the decedent, Mrs.
McMahon and Chester C. Crone, another employer of the decedent,
went to the Office of the Register of Wills, and offered the
photocopy for probate on or about March 14, 1995, without the
benefit of legal counsel. At this time they also attempted to
have Mrs. McMahon renounce as Executrix in favor of Mr. crone,
given his expertise in real estate, and given that real estate
and a mortgage from the adoptive son constitute the significant
assets of the Estate.
The Register of wills took no action upon the Renunciation
and the Petition for Probate at that time.
On or about May 8, 1995, Robert G. Augustin, the adoptive
son (hereinafter "Petitioner"), filed a Petition for Grant of
Letters of Administration.
On or about August 15, 1995, after she retained legal
counsel, Mrs. McMahon revoked her purported Renunciation, and Mr.
Crone simultaneously withdrew his Petition for Grant of Letters.
Mrs. McMahon (hereinafter "Respondent") then filed an Answer with
New Matter to the Petition, the said New Matter constituting a
Petition for Grant of Letters.
The photocopy offered for probate (hereinafter "R-1") is the
photocopy given to Mrs. McMahon by the decedent herself in 1992.
It contains a single page and bears the photocopied signatures of
the decedent and the notary; it also bears the original
signatures of the two witnesses who worked with the decedent at
the real estate office.
On two occasions, the decedent had also given copies of her
Will to her granddaughter, Sharon Richter, its remainder
beneficiary. The first was shortly after its execution. The
second was shortly before the decedent died. On both occasions,
the decedent, in the event of her death, instructed Mrs. Richter
to contact Mrs. McMahon, telling her that Mrs. McMahon knew where
to find all of the necessary papers.
Also, on many occasions, both before and after the execution
of the Will, the decedent told many people that she intended to
2
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leave her property to her granddaughter upon her death.
decedent has no living natural decedents other than her
granddaughter (Mrs. Richter) and Mrs. Richter's children.
The adoptive son, on the other hand, had a difficult
relationship with the decedent; he had sued her in both 1990 and
in 1993.
The
A hearing upon the validity of the photocopy of the will
offered for probate and for the determination of the proper party
to act as personal representative of the decedent's Estate was
held in the Office of the Register of wills of Cumberland County
on February 28, 1996.
This Brief is respectfully submitted in support of the
Proposed Findings of Fact and Conclusions of Law of Mrs. McMahon,
the same being filed herewith.
3
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II. STATEMENT OF ISSUES
A. SHOULD THE REGISTER OF WILLS ADMIT TO PROBATE THE
PHOTOCOPY OF THE LAST WILL AND TESTAMENT OF THE DECEDENT WHERE
THE DECEDENT DULY EXECUTED THE ORIGINAL WILL: WHERE THE CONTENTS
OF THE COPY ARE IDENTICAL TO THE CONTENTS OF THE ORIGINAL: AND
WHERE THE DECLARATIONS OF THE TESTATRIX TO HER FRIENDS. FAMILY
MEMBERS. AND BUSINESS ASSOCIATES. THE ACCESS OF THE OPPONENT AND
OTHERS. THE FRIENDLY RELATIONSHIP OF THE TESTATRIX AND HER
INTENDED BENEFICIARY. THE UNFRIENDLY RELATIONSHIP BETWEEN THE
TESTATRIX AND THE OPPONENT OF THE WILL. THE EVENTS SURROUNDING
THE DISAPPEARANCE OF THE WILL. THE NATURAL TESTAMENTARY WISHES OF
THE TESTATRIX. HER EXPRESSED TESTAMENTARY PLAN. THE EXISTENCE OF
THE PHOTOCOPY ITSELF. AND THE ABSENCE OF ANY INDICATION OF AN
INTENT TO REVOKE THE WILL ALL REBUT THE PRESUMPTION OF
REVOCATION?
(SUGGESTED ANSWER: YES.)
B. IF. ARGUENDO. THE REGISTER OF WILLS WERE TO REFUSE TO
ADMIT THE LAST WILL AND TESTAMENT TO PROBATE. SHOULD SHE APPOINT
RESPONDENT MCMAHON OR. IF NOT RESPONDENT MCMAHON THEN RESPONDENT
RICHTER. AS ADMINISTRATRIX OF THE ESTATE?
(SUGGESTED ANSWER: YES.)
4
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In. ARGUMENT
A. THE REGISTER OF WILLS SHO~~~ ~~~I~ T~ ~Rg~~~~ ~~E
PHOTOCOPY OF THE LAST WILL AND TE M F H _ E . WHE~E
THE DECEDENT DULY EXECUTED THE ORIGINAL ~i~~; ~~E~: ~~~ ~~Ni~~TS
OF THE COPY ARE IDENTICAL TO THE CONTENT _ Too I ..A' ~~
WHERE THE DECLARATIONS OF THE TESTAT~I~ ~~ ~E~ F~~~Ng~p ~~~~~Y
MEMBERS. AND BUSINESS ASSOCIATES. TH C S F _.0 AND
OTHERS. THE FRIENDLY RELATIONSHIP OF ~~~ ~~~~~t~~x ~~e ~~R
INTENDED BENEFICIARY. THE UNFRIENDLY A _ B E ~~E
TESTATRIX AND THE OPPONENT OF THE w~~~:af~E ~~~~~i ~~~~o~~~ ~~
THE DISAPPEARANCE OF THE WILL. THE _ _ T _. N. ~~~~ gF
THE TESTATRIX. HER EXPRESSED TEST~~~T~~Y ~~A~~ ~~: ~~~S~;"~ 0
THE PHOTOCOPY ITSELF. AND THE ABS T EO ~ES MP~ioNT~ N
INTENT TO REVOKE THE WILL ALL REBUT H P U F
REVOCATION.
1. Burden of Proof
To establish the existence of a lost will which was in the
custody of the testatrix prior to her death, the proponent of the
will has the burden of proving, through positive, clear, and
satisfactory evidence, that the original will was duly executed,
that the contents of the executed will were substantially the
same as the contents of the will offered for probate, and that
when the testatrix died, the will remained undestroyed or
unrevoked. In re Wasco, 444 Pa. 184, 188, 281 A.2d 877, 879
(1971); In re Keiser, 385 Pa. Super. 24, 28-29, 560 A.2d l48,
150 (1989).
In addition, if it be shown that the testatrix retained
custody of the will, and the will cannot be found after her
death, then the proponent must rebut a presumption that the
testatrix revoked or destroyed the will, again by positive,
clear, and satisfactory evidence. Id.; Keiser ibid.
2. The Decedent Executed the Oriainal Will.
In the instant case, there seems to be no question that the
decedent executed the original Will.
It has been stipulated that on August 27, 1992, the decedent
executed a document entitled "Last Will and Testament of Dorothy
E. Augustine" before William Hooper, a notary public, and that
5
. .
Mr. Hooper notarized the signature of the decedent at her
request.
Importantly, the photocopy of the will being offered for
probate (R-1) is dated August 27, 1992, and bears a photocopy of
the notarial signature of Mr. Hooper. Thus, the document offered
for probate must be a photocopy of the Will executed by the
decedent before Mr. Hooper on August 27, 1992.
contemporaneously, the decedent acknowledged R-1 as her Last
Will and Testament to Alfred J. Wadley and Tony wise, and she
asked them to witness R-1. R-1 bears their original signatures.
Mr. wadley and Mr. Wise also testified that they recognized the
signature of the decedent on R-1, as did Romayne McMahon, Sharon
Richter, and Thomas Lehman.
The manner of execution of the Will clearly complies with
the formalities for execution of a will in pennsylvania.
Pennsylvania law is, of course, unusual on this point in that it
only requires that the will be in writing and signed at the end.
20 Pa.C.S. ~2504.1; Id., ~2502.
That the testatrix signed the will has been proven beyond
any doubt. No evidence has been offered to the contrary.
~. The ?~ntents of the Document Offered for Probate are
~~b~~~n~!allv Similar to the Contents of the oriainal will.
In the instant case, the contents of the copy are not just
"substantially similar" to those of the original; they are
identical. The copy being offered in this case (R-1) is a
photocopy of the original will made just after the execution of
the Will, and acknowledged by the testatrix as her Will before
Messrs. Wadley and Wise.
R-1 was given to Respondent McMahon by the decedent. At the
time she gave it to her, the decedent told Mrs. McMahon that it
was a copy of her will. This occurred during the first week of
September, 1992, immediately following the execution of the
original Will by the decedent.
At about the same time she gave R-1 to Respondent McMahon,
the decedent also gave a photocopy of the will to her
granddaughter, Respondent Richter. Like Respondent McMahon,
Respondent Richter was also informed by the decedent that the
photocopy she received was a photocopy of the will. Shortly
before her death, the decedent gave Respondent Richter a second
document, again identifying it as, and acknowledging it to be, a
photocopy of her will.
6
There exists no question that the contents of R-1 are
identical to the contents of the original Will. No evidence has
been offered to the contrary.
4. The Decedent did not Revoke her will ~~ ~~~ ~~~rt Period
Between its Execution and the Death of t e t.
The only conceivable dispute in the instant case concerns
whether or not the decedent revoked her Will.
Recent Pennsylvania appellate authority on this point is
somewhat sparse.' However, the evidence rebutting the
presumption presented at the hearing upon the instant case
remains abundant. One recent Superior Court decision and one
fairly recent Supreme Court decision exist.
In its case, the Superior Court reversed both the Register
of Wills of Lehigh County and the Court of Common Pleas of the
same county, and disallowed the probate of a copy of a will. The
Court determined that the proponents presented insufficient
evidence to establish the similarity of contents of the original
will and to rebut the presumption of its revocation. In re
Keiser, 385 Pa. Super. 24, 29, 560 A.2d 148, 150 (1989).
While the proponents did offer testimony that the contestant
had held some ill will towards her son, and that the son was in
the apartment after the death of the decedent, this evidence,
without more, was deemed insufficient. Keiser at 29-30, 560 A.2d
at 151.
Contrary evidence existed. The decedent had described a
somewhat different dispositive scheme than that contained in her
will shortly before her death, and she had intended to consult
with an attorney in order to change the earlier will. Keiser at
27-28, 560 A.2d at 150. Furthermore, a significant period of
time--six years--passed between the time the will was executed
and the date of death.
'Pertinent, reported appellate cases other than Keiser,
supra, and Wasco, supra, include: Murray Will, 404 Pa. 120, 171
A.2d 171 (1961)(propriety of grant of jury trial, same case on
remand cited infra); Dalbey'S Est., 326 Pa. 285, 192 A. 129
(1937); Bates's Est., 286 Pa. 583, 134 A. 513 (1926); Glockner v.
Glockner, 263 Pa. 393, 106 A. 731 (1919); Mitchell v. Low, 213
Pa. 526, 63 A.246 (1906); and Gardner's Est., 164 Pa. 420, 30 A.
300 (1894), cited infra.
7
.~..
In the instant case, there exists much stronger evidence in
support of the rebuttal of the presumption of revocation and
little, if any, contrary evidence. The evidence of non-
revocation is more varied and more abundant than it was in
Keiser. Also, the period between the time of execution and the
death of the decedent is significantly shorter, a mere two and
one-half years.
A fairly recent decision of the supreme Court of
Pennsylvania constitutes an instructive contrast with Keiser.
Our Supreme Court affirmed the admission of a copy of a will to
probate. In re Wasco, 444 Pa. 184, 281 A.2d 877 (1971).
In Wasco, several witnesses testified as to declarations of
intent of the testator, and the scrivener testified that the
testator affirmed his will shortly before his death.
Furthermore, torn pieces of an earlier will were found, but there
was no trace of the will at issue. Wasco at 187-89, 281 A.2d at
878-79.
In the instant case, like Wasco, a number of third-party
witnesses testified to the unity of the dispositive intent of the
testatrix over a period of years. Also, the testatrix reaffirmed
that the will constituted her testamentary intent at several
times during the short period between its execution and her
death. In addition to her statements ~o various people, our
Testatrix gave copies of the will to both her Executrix and her
intended beneficiary, acknowledging it to be her will. Also, she
affirmed its contents to Mr. Hiott approximately one week before
her death.
In considering this matter, the Register should take
particular note of the variety of evidence rebutting the
presumption of revocation. This sort of multiplicity of evidence
was taken into account by the Orphans' Court division of the
Court of Common Pleas of Lancaster County in Murray's Estate, 58
Lanc. L.Rev. 185 (1962). In its decision, the local court quoted
much of the fOllowing passage, written by the appellate court:
The burden having been on the proponents in this
case to overcome the presumption of revocation . . .
made not only testator's character, condition, acts and
declarations, but the conduct and interests of those
who were around him, from and after the date of his
will, legitimate subjects of inquiry. 'Each of these
lines of proof was important in strengthening the
other, and both together seemed necessary to constitute
full proof:' Youndt v. Youndt, 3 Grant 140. The
theory of proponents being that of concealment or
8
destruction, the latitude of proofs must have been
necessarily wide. Fraud is rarely capable of proof in
a direct way. 'It is the chain of less direct
circumstances,' all pointing in the same way, until
there seems no other reasonable mode of reconciling
them, that must usually be depended on, in reaching a
conclusion. Eichenlaub v. Hall, 163 Pa. st. 201, 29
Atl. 919.
Gardner's Est., 164 Pa. 425-26, 30 A. 300 (1894).
The Lancaster county Court further observed that "'the
suspicious conduct of those who surrounded (the decedent) and
whose interests would plainly be subserved by intestacy' (p. 426)
is properly the sUbject of inquiry." Murray, supra., at 195,
quoting Gardner's Estate, 164 Pa. 420, 426, 30 A. 300 (1894).
In Gardner's Estate, our Supreme Court looked, in addition
to the "long settled plan of testamentary disposition", to the
shortness of the period of time between the date of execution and
the date of death, as well as to the suspicious conduct of those
"whose interests would be plainly subserved by intestacy", as
supporting the position of the proponents. Gardner's at 426, 30
A. 300.
In the manner of Murray Estate and Gardner's Estate, a
review of the abundant, significant evidence rebutting the
presumption of revocation in the instant case follows. Each of
these interwoven threads of evidence strengthens the others.
a. Declarations of the Testatrix to the Prooonent
First, there are the declarations of the testatrix
concerning her intended testamentary disposition and the will
itself to the proponent, Respondent McMahon. See Kelly v.
Donaldson, 456 So.2d 30, 33 (1984) (testatrix several times re-
affirmed existence of will, last time less than a month before
death) .'
'Citation is made throughout the following analysis to
recent, appellate decisions of various states supportive of the
proposition that the strand of evidence supports the rebuttal of
the presumption. Parenthetical summaries are provided. These
cases supplement the dearth of recent Pennsylvania appellate
decisions, excepting Keiser and Wasco.
9
The decedent told Respondent McMahon on many occasions,
beginning in approximately 1985 and continuing until the time of
her death, that she wished to leave her estate to her
granddaughter, Respondent Richter. In fact, concerned about
Petitioner Augustin, the decedent repeatedly asked Respondent
McMahon to ensure that Respondent Richter received all to which
she would be entitled as the primary beneficiary of the
decedent's estate.
The decedent did not have a will at the time these
discussions began, and Mrs. McMahon responded to the decedent's
statements that she wanted to leave her estate to her
granddaughter by encouraging the decedent to make a will.
Shortly after August 27, 1992, the decedent told Re~pondent
McMahon that she had indeed executed a Will, giving her estate to
Respondent Richter. About that time, the decedent gave Mrs.
McMahon R-1, telling her that it was a copy of her will and that
the original will, as well as her other important papers, were
located in the right-hand drawer of the desk in the dining room
of her residence.
At the same time that she gave Respondent McMahon R-1, the
decedent gave her a key to the residence. The decedent and Mrs.
McMahon discussed the fact that Respondent McMahon was the
Executrix of the Will, both at the time she received R-1 and at
other times between the execution of the will and the death of
the decedent.
b. Declaration of the Testatrix to her intended beneficiarv
Second, the decedent made similar declarations of intent and
statements concerning the will to her intended beneficiary,
Respondent Richter. See In re Kuszmaul, 491 So.2d 287, 288
(Fla.Dist.ct.App. 1986) (letter to beneficiary stating property
devised in will to "be yours"); see also Kelly v. Donaldson,
supra.
The decedent had many discussions with Mrs. Richter, during
which she consistently told her that she would inherit the
estate. During these discussions, the decedent often mentioned
Petitioner Augustin, stating that she did not wish him to inherit
anything from her estate.
These discussions occurred over a period of years, and
included the time period between the date of execution and the
date of death of the decedent.
10
Further, the decedent provided Respondent Richter with a
photocopy of R-1 at about the same time she gave R-1 to
Respondent McMahon, i.e., shortly after the execution of the
original. At the time she gave her the copy, the decedent told
Respondent Richter that it was a copy of her Will. At the same
time, the decedent also gave Mrs. Richter the telephone number of
Mrs. McMahon. When she did so, the decedent instructed her
granddaughter to contact Mrs. McMahon immediately after she (the
decedent) died. The decedent also stated that Mrs. McMahon knew
where to find all of the necessary papers.
Shortly before her death, the decedent again provided
Respondent Richter with a second copy of R-1. Again, the
decedent affirmed to Mrs. Richter that this was a copy of her
Will, and that she would inherit her property upon her death. As
in the prior discussions, the decedent again mentioned Robert
Augustin, telling Respondent Richter that she did not intend to
leave him anything.
C. Declarations of intent to a disinterested familv member
Third, there are the similar declarations of intent to Mr.
Hiott. See In re Will of Jolly, 89 NC App. 576, 366 S.E.2d 600
(1988) (statements made to disinterested relatives (as well as
friends and business associates), noting as well close
relationship with proponent and access of opponent to place where
will kept).
Although she did not tell him about her will specifically,
the decedent told her son-in-law, Teddy Hiott, on many occasions
that she intended to leave her estate to his daughter, her only
natural descendant, Respondent Richter. In fact, Mr. Hiott spoke
with the decedent by telephone approximately one week prior to
her death, and, during this conversation, the decedent affirmed
her testamentary intentions, reiterating her decision to give her
estate to Respondent Richter.
d. Declarations of intent to disinterested third carties
Fourth, there are the similar declarations of intent and
statements concerning the disposition of the Estate to
disinterested third persons, including Mrs. McMahon, Mr. Wise,
and Mr. Lehman. See Jolly, supra; see also In re Wiarda, 508
N.W.2d 740, 743 (Iowa 1993) (statements of dislike for family
members and of kinship with beneficiary-churches); and In re
Weir, 120 Ill.App.3d 18, 75 Ill.Dec. 966, 458 N.E.2d 134, 136
(1983) (declarations of testator of continuing loving
relationship between testator and beneficiary between dates of
execution and death, noting also access of opponent to will).
11
At the time she asked them to sign R-1, the decedent told
Mr. Wadley and Mr. Wise that the document she was aSking them to
sign was her will.
Mr. Wise testified that the decedent spoke often of her
granddaughter (Respondent Richter), as well as the decedent's
desire to provide for her. He further described the decedent's
consistent pattern of sending gifts to Mrs. Richter. The
decedent told him that she int~nded to leave her estate to her
granddaughter. The decedent made these declarations to Mr. Wise
both before the execution of the Will and during the time period
between its execution and the death of the decedent.
Many times, the decedent also told Thomas Lehman, a family
friend, that she intended to leave her estate to her
granddaughter. Mr. Lehman testified that often, when he was
visiting the decedent, she would show him her photo album,
pointing out Respondent Richter and her children, stating that
she (Mrs. Richter) would inherit the Estate.
Mr. Lehman stated that he knew, beyond any doubt, that the
decedent intended to leave her granddaughter everything. Mr.
Lehman visited the decedent several days before she died, and he
saw no change in her indicating that she had altered her
testamentary desire.
e. Access of the oDDonent of the will
Fifth, there is the access of the opponent of the Will to
the place where it was kept over an extended period of time.
This was a factor in virtually all of the cases previously cited.
See also Thomas v. Thomas, 30 Ark.App. 152, 784 S.W.2d 173, 175
(1990) (opponent and wife cleaned house, were in and out of house
often); First Interstate v. Henson-Hammer, 98 or.App. 189, 779
P.2d 167, 168-69 (1989) (access of opponent-child who removed
important papers after death but claimed she found no will); In
re Caples, 683 So.W.2d 741, 742 (Tex.App. 1984) (evidence
opponent searched personal items of deceased combined with
evidence of loving relationship toward beneficiary of will); and
Barngrover v. Est. of Barngrover, 95 N.M. 42, 618 P.2d. 386, 387-
88 (1980) (will kept in unlocked strong box, opponent searched
box for will after death).
At the time she gave R-l to Mrs. McMahon, the decedent told
her that she had placed the original will in the right-hand
drawer of her desk, located in the dining room of her residence.
Upon the decedent's death, Mrs. McMahon, the Executrix, searched
the desk for the original Will and did not find it.
12
. .
The opponent, Robert Augustin, admits to being in the
decedent's residence in the hours immediately fOllowing her
death. He admits to searching the very desk in which the Will
was located, and he admits to removing papers from that desk.
Petitioner Augustin further testified that he had previously
searched that same desk on numerous occasions. Of course, he
denied removing the Will, knowing that any such admission would
be tantamount to admitting, under oath, to the commission of a
felony.
f. Access of other Dersons
Sixth, there is the access of other persons--including the
roomers and Mr. Stoner--to the place where the will was kept.
A number of people other than Robert Augustin had access, to
the desk in which the decedent said she had placed the original
Will, both before and after the decedent's death. These include
the two roomers, the cleaning woman (Robert Augustin's ex-wife,
with whom he has a continuing relationship) and Carl Stoner, a
disbarred lawyer who may have assisted in the preparation of the
Will.
Respondent McMahon testified as to the ease of entry into
the decedent's residence, both before and after her death, and
that the desk in which the will was located does not have a lock
on it. She also testified that there were often people in the
decedent's residence at times when the decedent herself was not
present, among them the roomers and Robert Augustin's ex-wife.
Further, she testified that, like Robert Augustin, Carl
stoner was also at the decedent's residence in the hours
immediately following her death. Mr. Wise testified that Mr.
stoner was present at the time Mr. Wise executed the Will. It
remains possible that Mr. Stoner took the original Will. He had
already been disbarred and jailed; perhaps he sought to avoid
being accused of the unauthorized practice of law, as well.
a. Evidence concernina friendlv relationshiD of Testatrix
and her intended beneficiary
13
Seventh, there is evidence concerning the friendly
relationship between the beneficiary of the lost Will and the
testatrix. Several of the decisions previously cited considered
this factor.
"."',~-,------,. .~-._-~--.".. '-><.
. .
..
Respondent Richter, the benAficiary under R-l, testified
that she and the decedent had always had a close relationship.
Mrs. Richter had lived with the decedent at two different times,
earlier in her life. In many ways the decedent was like a mother
to Mrs. Richter, especially after the untimely death of the
decedent's only daughter, Mrs. Richter's mother. Mrs. Richter
explained that the decedent was always sending packages of
clothing or food to her, and gifts for her children.
Mrs. Richter spent many long hours talking on the telephone
with the decedent and visited whenever possible.
Just a few days before she died, the decedent reiterated her
request that Respondent Richter and her children move into the
decedent's house and live with her, a request she had made many
times before. Notwithstanding the personal disruption that would
entail, Mrs. Richter testified that she seriously considered
doing so at that time, as she was concerned that Robert Augustin
was not taking proper care of the decedent, even though he had
promised her he would.
Mrs. McMahon, Mr. Wise, Mr. Hiott, and Mr. Lehman all
testified as to how often the decedent spoke of Respondent
Richter, and that she was clearly the light of the decedent's
life. She proudly showed pictures of her to Mr. Lehman each time
he visited, and she spoke often and consistently of her and her
children.
h. Evidence of friendlv relationshiD of Testatrix
and the DrODonent
Eighth, there is evidence concerning the friendly
relationship between the proponent and the testatrix.
Respondent McMahon was a friend and employer of the
decedent. She testified that the decedent often confided in her;
that they discussed her estate planning and other personal
matters; that the decedent gave her a copy of her will (R-1) and
the keys to her house; that she named Respondent McMahon as the
Executrix of her will; and that she repeatedly asked Respondent
McMahon to care for her granddaughter. The decedent trusted
Respondent McMahon to assist her and carry out her wishes.
This relationship continued until the time of her death. In
fact, the decedent was at Respondent McMahon's place of business,
visiting with her, less than an hour before she died. As a
matter of fact, it was Respondent McMahon who insisted that the
decedent go to the doctor, in whose office she ultimately died,
because she was concerned about her friend's health.
14
-~.._-_.__..+~.~.....---,.__.~-~-
i. Unfriendlv relationshio between Testatrix and oooonent
Ninth, there is evidence concerning the unfriendly
relationship between the testatrix and the opponent, who would be
the person disinherited under the lost will. This factor has
been noted in several of the decisions previously cited.
Respondent McMahon, Respondent Richter, Mr. Wise, Mr. Hiott,
and Mr. Lehman all testified concerning the decedent's strained
relationship with Robert Augustin, the opponent.
The decedent spoke of Robert Augustin to Mrs. McMahon on
many occasions, often discussing their relationship with her.
Robert Augustin sued the decedent twice, neither time long before
her death.' He had failed to make regular payments under a
mortgage held by the decedent, after convincing her to sell her
investment properties to him. His defalcations caused great
strain, both emotional and financial, for the decedent, and his
defalcations forced her to file a petition in bankruptcy.
Mrs. Richter also testified that the decedent and Robert
Augustin were not close. She, too, spoke of his failure to make
payments under the mortgage, and the financial problems this
caused the decedent. She had depended upon Robert Augustin to
care for the decedent as the decedent grew older, as he had
promised. However, Respondent Richter testified that Petitioner
Augustin did not help the decedent, and in fact, that he caused
her harm.
Mr. Wise also testified about the decedent's relationship
with Robert Augustin, specifically that his failure to make
mortgage payments caused the decedent great financial stress.
Even Petitioner Augustin himself, testified that his
relationship with the decedent was, at best, only "up and down".
Robert Augustin did not even attend the decedent's funeral;
nor was he willing to incur any financial liability, personally,
for the cost of her burial.
'42 Equity 1990, 43 Equity 1993; (C.P. Cumberland county)
15
j. Events sUQaestina non-revocation
Tenth, there is evidence concerning the events surrounding
the will's disappearance which suggests that it remained
unrevoked.
As described previously, Robert Augustin went to the home of
the decedent as soon as he learned of her death, in order to
search her desk. He even admits that he removed important
papers.
When Respondent McMahon searched for the Will, the desk had
already been rifled by Robert Augustin, and neither the original
nor any copy of the Will could be found, either in the desk or
among the decedent's other papers.
No question exists that Robert Augustin stands to benefit if
the decedent were deemed to have died intestate. As her adopted
child, he would share equally in the estate with Respondent
Richter. Under the terms of the decedent's Will, however, Robert
Augustin inherits nothing; her estate passes to Mrs. Richter.
Further, Respondent McMahon testified that Carl stoner was
also at the decedent's residence, and that he had gone there when
her heard that the decedent had died. Although Mr. stoner does
not stand to benefit as an heir, he may have a penal interest at
stake, and he, too, arrived at the decedent's residence in the
hours immediately following her death and could have taken the
will.
k. Natural testamentarv wishes
Eleventh, there is evidence concerning the testator's
natural testamentary wishes.
Respondent McMahon, Respondent Richter, Mr. wise, Mr.
Lehman, and Mr. Hiott all testified that the decedent clearly and
consistently stated that she intended to leave her estate Mrs.
Richter, her granddaughter (and Mrs. Richter's children). The
decedent also stated to those SQme people on several occasions,
independently of one another, that she did not wish to leave
anything to Robert Augustin.
Mrs. Richter and her children are the decedent's. only
natural descendants. Robert Augustin was adopted late in life,
and had an often-hostile relationship with the decedent.
16
1. ExcresBed testamentarv clan
Twelfth, there is evidence concerning the testatrix's
expressed testamentary plan.
Again, there was ample testimony from Respondent McMahon,
Mrs. Richter, Mr. Wise, Mr. Hiott, and Mr. Lehman, all
demonstrating that the decedent clearly expressed to them many
times, in many ways, that it was her desire to leave her estate
to Respondent Richter. The declarations of the decedent of her
unchanging testamentary plan occurred before she executed the
Will; they occurred after she executed the Will; such
declarations were even made shortly before her death.
Further, the decedent gave Respondent McMahon R-1, and she
gave Respondent Richter not one, but two copies of her Will. She
firmly expressed her desire, to Respondent McMahon, Respondent
Richter, Mr. Hiott, Mr. Wise, and Mr. Lehman, that Robert
Augustin not inherit any portion of her estate.
m. Existence of chotococy
Thirteenth, there is the existence of R-1, the photocopy of
the original Will.
The decedent, at the time she executed the original Will,
had Mr. Wadley and Mr. Wise sign R-1, which she identified to
them as her Will. She then gave this copy to Respondent McMahon,
identifying it as a copy of her Will.
Further, she sent Respondent Richter two other copies of her
Will--one at the time of execution and one shortly before her
death.
n. Absence of indication of intent to revoke
Finally, there remains an absence of any indication showing
the testatrix's intention to revoke. See In re Riohard, 556 A.2d
1091, 1092 (Me. 1989) (no credible evidence to indicate decedent
destroyed or otherwise revoked will); see also In re Fisher, 344
N.W.2d 579, 581 (Iowa 1983); In re Wheadon, 579 P.2d 930, 933
(Utah 1978).
Each of the witnesses testifying on behalf of Respondent
McMahon provided evidence of the decedent's testamentary intent,
i.e., that she intended to leave her estate to Respondent Richter
and that she did not intend to leave any portion of her estate to
Robert Augustin.
17
. .
No evidence has been offered to suggest that the decedent in
fact destroyed the original will or that she intended to revoke
it.
On the contrary, the provisions of R-1, which is an exact
copy of the contents of the original Will, are wholly consistent
with the expressed desires of the decedent, from the time she and
Respondent McMahon first discussed her estate in 1985 until the
time of her death.
,
18
B. IF. ARGUENDO, THE REGISTER OF WILLS WERE TO REFUSE TO
ADMIT THE LAST WILL AND TESTAMENT TO PROBATE. THEN SHE SHOULD
APPOINT PETITIONER MCMAHON OR. IF NOT PETITIONER MCMAHON THEN
PETITIONER RICHTER. AS ADMINISTRATRIX OF THE DECEDENT'S ESTATE.
1. Attemoted renunciation of no effect
On March 14, 1995, Respondent McMahon, the named Executrix,
filed a Renunciation in favor of Chester C. Crone. She withdrew
this Renunciation by the filing of a Praecipe on August 15, 1995.
simultaneously, Mr. Crone withdrew his Petition for Grant of
Letters.
Petitioner Augustin apparently argues that the withdrawn
Renunciation should somehow preclude the Register from naming the
decedent's designee as personal representative, even though:
(1) it was filed without legal counsel; (2) it was withdrawn
after Mrs. McMahon obtained the assistance of legal counsel; and
(3) the Register took no action upon either the Renunciation or
the Petitions of Mr. Crone and Robert Augustin.
Once she retained legal counsel, Mrs. McMahon filed a
Praecipe to Revoke Renunciation, a copy of which was attached as
Exhibit C to her Answer to Petitioner Augustin's Petition for
Grant of Letters of Administration. Mrs. McMahon testified at
the hearing that she remains willing to act as personal
representative of the decedent's estate, and that she believes
she is capable of carrying out the duties of a fiduciary, with
the assistance of counsel.
Where a renunciation names a nominee, it is not absolute.
Rather, it constitutes a conditional release. Shomo's Appeal, 57
Pa. 356, 360 (1868). If the Register fails to appoint the
nominee, the original party's right to serve is reinstated. Id.;
In re Mullen's Estate, 22 Fid. Reptr., 639, 648 (1972).
It should be noted that estoppel does not apply to this
situation. For an estoppel to exist, the Register would have to
have granted the letters sought. Weidner's Estate, 39 Pa. Super.
120, 125 (1909).
Significantly, Mrs. McMahon's withdrawal of her Renunciation
and her Petition for Probate and Grant of Letters were all filed
before the Register had taken any action with respect to the
decedent's estate. To date, no one has been appointed as
personal representative of the decedent's Estate.
19
,
'-"'r-r
Further, no one, specifically Petitioner Augustin, changed
his position to his detriment between the time Mrs. McMahon filed
her Renunciation and the time she filed her praecipe to Revoke.
The only action taken by Petitioner Augustin during this time was
the filing of his own petition for grant of letters of
administration.
Because it was withdrawn before any action was taken, Mrs.
MCMahon's Renunciation and subsequent Revocation of Renunciation
remain a nUllity.
2. statutory auidelines.
If R-1 is a valid Will, letters testamentary should be
granted to Respondent McMahon, the Executrix designated in the
Will. 20 Pa.C.S. ~3155(a).
If, arguendo, the Register were to determine that the Will
is not valid, Petitioner Augustin and Respondent Richter are in
the same class under the intestacy statutes, as they would share
equally in the decedent's Estate. 20 Pa.C.S. ~2103(1).
Therefore, initially, Petitioner Augustin and Respondent
Richter are equally entitled to administer the Estate under 20
Pa.C.S. ~3155(b)(3). However, as there exist two beneficiaries
in the same intestate class, it would remain the duty of the
Register, in her discretion, to appoint the person she would
judge able to "best administer the estate"..
In the instant case, there would be no preference according
to the size of the share, as Petitioner Augustin and Respondent
Richter would share equally in intestacy." The determination
for the Register is, therefore, who shall best administer the
Estate.
"In exercising her discretion, the Register would be urged
to note that even if the will were refused probate, the clear
intent of the decedent would be for Mrs. McMahon, and if not,
Mrs. Richter, to administer the Estate. This would be consistent
with the statutory scheme. 20 Pa.C.S. ~3155(a); Id.,
~3155(b)(1) .
20
3. Effect of Petitioner Augustin's adverse interest.
Generally, the right to administer an estate is based upon
one's interest in the estate, not upon one's relationship to the
decedent. Letters of administration should not be granted to one
whose interest conflict with the interests of the Estate.
Rafferty Estate, 377 Pa. 306, 307, 308, 105 A.2d 147, 148 (1954);
Heron's Estate, 6 Phila. 87, 89, 90 (1867).
The pleadings and testimony contain numerous reasons why the
Register should not appoint Petitioner Augustin as personal
representative of the Estate.
Perhaps most importantly, Petitioner Augustin remains
mortgagor upon a mortgage of which the Estate is mortgagee. This
loan constitutes a substantial asset of the Estate. The debtor
himself testified that he owes the Estate at least $50,000.00,
although he remains unsure of the actual amount due.
He admitted that he fails to pay real estate taxes in full
when due, and he admitted that he has made public statements
advocating the non-timely payment of them. These facts both
conflict with the duty of a fiduciary to pay all taxes when due.
Petitioner Augustin should not be trusted with fiduciary
office. Within hours of the death of the decedent, Petitioner
Augustin rifled her desk where her Will and other important
papers were known to be kept, and he removed certain papers. Not
surprisingly, the decedent's Will, which disinherits him,
"disappeared".
Further, Petitioner Augustin has not followed proper
procedures. He attempted to by-pass the Register by applying to
the Court for letters of administration. In his petition, he
deceivingly pled the decedent's bankruptcy but failed to mention
his own, and he pled that he was unaware of the value of the
Estate, and disclosed no assets, not even his mortgage to the
decedent.
At the hearing before the Register, Petitioner Augustin
stated that he did not recall that the decedent had a restraining
order issued against him by the Cumberland County Court until he
was reminded that he had testified under oath in a related
proceeding approximately three weeks earlier that he did, in
fact, know of the restraining order. He stated that he sued the
decedent only once, but the records of the Court reflect two
cases filed by him against her in equity.
'\
21
clearly, Petitioner Augustin's interest in the mortgage is
adverse to the interest of the Estate. By his own admission, his
stated beliefs about paying taxes necessarily conflict with at
least one of the fiduciary duties he seeks to undertake.
Further, Petitioner Augustin has exhibited a lack of truthfulness
in providing information and testimony to both the Register and
the Court. consequently, he should not be appointed to
administer the Estate.
By comparison, Respondent McMahon is a successful business
woman in whom the decedent had great confidence, as the decedent
chose her to represent the Estate. Respondent Richter has
expressed her willingness to have Mrs. McMahon act in her stead,
and Mrs. McMahon has indicated her willingness to do so.
similarly, Respondent Richter would honestly administer the
Estate, and would do so ably with the assistance of legal
counsel, should the Register refuse to use her discretion to
appoint Respondent McMahon.
22
IV. CONCLUSION
The decedent clearly wished to leave her property to her
granddaughter, Sharon Richter, upon her death. She told many
people that this was her intention, and she executed a will that
is consistent with this desire. She gave her friend, named
Executrix in the Will, a copy of it at about the time that she
executed the original document, telling Mrs. McMahon that she had
placed the original Will in her right-hand desk drawer.
The drawer has no lock. It is in the dining room of the
residence, easily accessible to any person who might be in the
house.
The house was accessible to many people during the lifetime
of the decedent, including occasions when she was not present.
within hours of her death, at least four people were in the
decedent's residence.
Of these, Robert Augustin, who most benefits from the "loss"
of the Will, admits he searched the decedent's desk on the day of
her death, as well as on several occasions during her lifetime,
and he testified that he did, in fact, remove important papers on
the date of death.
The evidence adduced at the hearing proves Respondent
McMahon's case beyond any doubt. Consequently, the Register
should admit R-1 to probate, and she should grant letters
testamentary to Romayne S. McMahon as Executrix. By doing so,
the Register will advance the decedent's testamentary intent, an
intent she continuously reaffirmed over an extended period of
time, a period continuing virtually to the momen1; of her death.
Respectfully submitted,
t<0 b. ~C?tltC?\./
Ja e D. Cameron
1327 North Front street
Harrisburg, PA 17102
(717) 236-3755
Attorney I.D. No. 58998
Attorney for Respondent
Romayne S. McMahon
23
CERTIFICATE OF SERVICE
James D. Cameron, Attorney for Respondent Romayne S.
McMahon, hereby certifies that he served a copy of the foregoing
Respondent Romayne S. McMahon's Brief in support of her proposed
Findings of Fact and conclusions of Law by mailing a copy of the
same, first class mail, postage pre-paid, on the 20th day of
March, 1996, addressed as follows:
Mark E. Halbruner, Esq.
GATES & ASSOCIATES, P.C.
1013 Mumma Road, suite 100
Lemoyne, PA 17043
Sharon K. Richter
701-A Barbecue Church Road
Sanford, NC 27330
James D. Cameron, Attorney for Respondent Romayne S.
McMahon, hereby certifies that he served a copy of the foregoing
Respondent Romayne S. McMahon's Brief in support of her proposed
Findings of Fact and Conclusions of Law by hand-delivering a copy
of the same, on the 20th day of March, 1996, to: .
Ralph H. wright, Jr., Esq.
JOHNSON, DUFFIE, STEWART & WEIDNER
301 Market Street
Lemoyne, PA 17043
Ja
13 7 orth Front Street
Harr sburg, PA 17102
(717) 236-3755
Attorney I.D. No. 58998
Attorney for Respondent
Romayne S. McMahon
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IN RE: ESTATE OF DOROTHY E.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
: NO. 21 - 95 - 392
AUGUSTINE, DECEASED
PRAECIPE
TO THE CLERK:
Please file the enclosed transcript of the hearing held
February 28, 1995, to the above-captioned matter.
e D. Cam on
21 North Front Street
H Hrisburg, PA 17102
(717) 236-3755
Attorney I.D. No. 58998
Attorney for Romayne S.
McMahon
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BEFORE THE REGISTER OF WILLS OF CUMBERLAND COUNTY, PENNSYLVANIA
IN REI
ESTATE OF DOROTHY ESTATE NO. 21-95-392
E. AUGUSTIN, deceased :
BRIEF OF ROBERT G. AUGUSTIN IN OPPOSITION
TO PETITION TO PROBATE LOST WILL
AND NOW, comes Robert G. Augustin. by and through his
attorneys, Gates & Associates, P.C., and submits the following
brief in opposition to the petition to probate lost will filed by
Romayne S. McMahon:
I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
Dorothy E. Augustin (hereinafter the "Decedent") was born July
13, 1914.
Decedent and Sylvester E. Augustin were married on
August 22. 1962.
Decedent had one natural child. Betty Hiott.
through a previous marriage.
Betty Hiott is deceased and was
survived by one child, Sharon K. Richter. Richter now resides in
North Carolina and does not intend to move her residence to
pennsylvania.
(Transcript of Hearing held February 28. 1996,
before the Cumberland County Register of Wills, N.T. 50-52.1)
Decedent and Sylvester Augustin adopted Robert Augustin together.
(petitioner'S Exhibit 1. certified copy of adoption records.)
Robert Augustin is a resident of Cumberland County, pennsylvania.
Decedent and Sylvester Augustin had no natural children or other
lThe transcript will hereinafter be referred to as "Register's
Hearing") .
adopted children together.
Sylvester Augustin died on November 17, 1991. His estate is
the subject of litigation under Cumberland County Orphans' Court
Docket No. 21-92-190. Decedent died suddenly on February 15. 1995.
At the time of her death. Decedent was employed as a real estate
agent with Crone Real Estate and was still able to read and operate
an automobile. (Register's Hearing, N.T. 26.)
On or about March 14, 1995. Chester C. Crone filed a petition
for probate and grant of letters testamentary. The petition
concerned a one-page document bearing the date August 27. 1992. and
purporting to be Decedent I s will. The document contains what
appear to be the photocopied signatures of Decedent and William
Hooper, a notary public. The document also contains what appear to
be the original signatures of Tony Wise and Alfred J. Wadley. The
document provides that Decedent's entire estate be distributed to
Richter and her family. (Respondent's Exhibit 1, copy of will of
Dorothy Augustine.)
The alleged will names Romayne Shay McMahon as Decedent's
executrix. Attached to Crone's petition was a document signed by
McMahon which reads as follows: "The undersigned Romayne Shay
McMahon, executrix of the above decedent, hereby renounce(s) the
right to administer the estate and respectfully ask(s) that Letters
be issued to Chester C. Crone." The document was dated March 14,
1995, and is part of the Register of wills' record in this estate.
The Register of Wills apparently declined to act on Crone's
2
petition. On May 11, 1995, Robert Augustin filed a petition with
the Cumberland County Orphans' Court asking that the court certify
the record from the Register of Wills and issue an order directing
that letters of administration be granted to Robert Augustin. On
May 17, 1995, a rule to show cause was issued upon Richter. On May
25, 1995, the rule was served upon Richter. On or about June B,
1995, Richter filed an answer to Robert Augustin's petition. On
July 11, 1995, Robert Augustin listed his petition for argument and
served Richter with notice of the same.
On August 15, 1995, McMahon filed an Answer with New Matter to
Robert Augustin's petition. Concurrent with her pleading, McMahon
filed a Praecipe to Revoke Petition for Grant of Letters apparently
signed by Crone and a praecipe to Revoke Renunciation signed by
McMahon. In her New Matter, McMahon requested that the document
originally filed by Crone be admitted to probate as Decedent's will
and that letters testamentary be granted to McMahon.
Argument on Robert Augustin's peti tion was thereafter held
before JUdges Harold E. Sheely and J. Wesley Oler, Jr. Richter was
not represented at the argument, and counsel for McMahon was not
permitted to participate. On September 13, 1995, an Order was
issued remanding the matter to the Register of Wills for a
determination of Robert Augustin's suitability to receive letters
of administration. Upon petition of MCMahon, the Order was
modified on January 25, 1996, to direct that the Register of Wills
first consider whether to admit Decedent's alleged will to probate.
3
A hearing was held before the Register of wills on February
28, 1996.
The testimony of Hooper, supplied via stipulation,
established that on August 27, 1992: (1) Hooper identified Decedent
by her bank identification card; (2) Decedent executed a document
entitled "Last will and Testament of Dorothy Augustine" before
Hooper; and (3) Hooper notarized Decedent's signature on said
document.
The stipulation is silent as to any knowledge on
Hooper's part about the contents of the alleged will or the
creation of the photocopy offered by McMahon.
No other witnesses
had any first-hand knowledge regarding the execution of the
original document or the creation of the photocopy offered by
McMahon.
At the hearing, McMahon presented the testimony of wise and
Wadley, the purported subscribing witnesses to Decedent's execution
of the alleged will. Both Wise and wadley were co-employees of
Decedent at Crone's real estate office. Neither Wise nor Wadley
could recall when they signed the alleged will.
(Register's
Hearing, N.T. 5, 37.) Wadley testified that he signed only one
document and that he did so in wise's office at Crone's real estate
agency. (Register's Hearing, N.T. 5-7.) Wise also testified that
he only recalled signing one document. (Register's Hearing, N.T.
33.) However, Wise stated that he signed the document in a spare
office near the rear of the building and not in his own office near
the front of the building. (Register's Hearing, N.T. 36.) Neither
Wadley nor Wise is certain whether the other was present when he
4
(
I
signed the alleged will. (Register's Hearing, N.T. 6. 33 and 35-
36.) Wadley testified that the only persons present during the
signing were Decedent and possibly wise. while wise testified that
he also recalled carl Stoner and Tony penn being present.
(Register's HearIng, N.T. 6 and 33.) Neither Wise nor wadley read
the alleged will when they signed it. (Register's Hearing, N.T. 6
and 38-39.)
McMahon testified that she had on many occasions encouraged
Decedent to make a will, that Decedent had given her the photocoPY
which is being offered for probate and that Decedent told her the
original document was kept in Decedent's desk. (Register's
Hearing, N.T. 10-12 and 15.) McMahon never saw the original
document either in Decedent's desk or elsewhere. (Register's
Hearing, N.T. 21.) McMahon suggested that Robert Augustin removed
the original document from Decedent's desk, but she did not see him
do so. (Register's Hearing, N.T. 20.)
Robert Augustin denied removing the original document from
Decedent's desk. (Register's Hearing. N. T. 66 - 67.) He also denied
having ever seen the original document. (Register's Hearing. N.T.
66.) Robert Augustin testified that he had an up'and'down
relationship with Decedent and that she relied on him for
assistance with financial and personal matters. (Register's
Hearing, N.T. 65.)
5
II. QUESTIONS PRESENTED
A. SHOULD THE DOCUMENT OFFERED BY McMAHON BE ADMITTED TO
PROBATE AS DECEDENT'S WILL?
Suggested Answer: No.
B. ASSUMING, ARGUENDO, THAT THE DOCUMENT OFFERED BY McMAHON
IS ADMITTED TO PROBATE AS DECEDENT'S WILL, SHOULD LETTERS
TESTAMENTARY BE GRANTED TO McMAHON?
suggested answer: No.
C. ASSUMING, ARGUENDO, THAT THE DOCUMENT OFFERED BY McMAHON
IS NOT ADMITTED TO PROBATE AS DECEDENT'S WILL, SHOULD LETTERS OF
ADMINISTRATION BE GRANTED TO ROBERT AUGUSTIN?
suggested answer: Yes.
III. LEGAL ARGUMENT
A. THE DOCUMENT OFFERED BY McMAHON SHOULD NOT BE ADMITTED
TO PROBATE AS DECEDENT'S WILL.
The document offered by McMahon contains the original
signatures of Wise and wadley but only the photocopied signatures
of Decedent and Hooper. The location of the document bearing the
original signatures of Decedent and Hooper is unknown. However,
Decedent supposedly kept the original will in the desk she
maintained at her residence.
6
The pennsylvania Superior Court has summarized the burden of
proof in cases such as this:
"In order to establish the existence of a lost will which
was in the custody of the testatrix prior to her death,
the proponent of the will must overcome the presumption
that the testatrix destroyed or revoked her will. AS
such, the proponent of the will must prove the following
factors by utilizing evidence which is positive, clear,
and satisfactory: (1) that the testatrix duly and
properly executed the original will; (2) that the
contents of the executed will were substantially the sams
as on the copy of the will presented for probate; and (3)
that the testatrix had not destroyed or revoked her will
prior to her death. Declarations of intent, condition,
and circumstances of family are insufficient to establish
these factors and thus rebut the existent legal
presumption. Accordingly, a court will not weigh the
probability of the decedent's wishes or otherwise
speculate as to the motives which mayor may not have
influenced the testatrix in the direction of intestacy."
In re Estate of Keiser, 385 Pa.Super. 24, 28-29, 560 A.2d
148, 150 (l989) (citations omitted).
The first two elements of the proponent's burden, i.e., the
execution and contents of the alleged will, must be established by
two witnesses "each of whom must separately depose to all the facts
necessary to complete the chain of evidence so that no link in it
may depend on the credibility of but one."
In re Harrison's
Estate, 316 Pa. 15, 18-19, 173 A. 407. 409 (1934). In order to
satisfy the third element of the burden of proof, the proponent
must submit evidence which is positive and sufficient to overcome
not only the presumption of revocation by the testatrix but also a
presumption of innocence on the part of a third party charged with
destroying the will. Michell v. Low, 213 Pa. 526, 534, 63 A. 246,
250 (1906). Although a court may entertain evidence suggesting
7
that hostile heirs had access to a will before its alleged
disappearance, "the mere fact that hostile heirs had such access to
the will and a motive to destroy the will is insufficient to create
the presumption that the will was destroyed by someone other than
the testatrix without the testatrix's knowledge." In re Estate of
Keiser, 385 Pa.super. at 29, 560 A.2d at 150. "That the [alleged
will] may correspond in disposition with what those who knew the
[testatrix] described as the most probable objects of [her] bounty,
and that such evidence was confirmatory of the disputed will, does
not bridge the gap." Hodason's Estate, 270 Pa. 210, 214, 112 A.
778, 779 (1910).
Although McMahon has offered the testimony of three
"witnesses", Hooper, wise and Wadley, she has not satisfied the
two-witness rule with respect to either the execution or contents
of the alleged will. Hooper saw Decedent sign the original
document, but he did not state that he read the original document
nor did he verify that the photocopy offered by McMahon is a true
copy of the original document. Thus, Hooper's testimony does not
confirm that the contents of the original document are accurately
reflected in the photocopy offered by McMahon. Therefore, Hooper
does not qualify as one of the two witnesses required to prove a
lost will.
Although Wise and Wadley verified their signatures on the
document offered by McMahon, each affirmatively expressed that he
neither read the document at the time he signed it, saw Decedent
8
.
sign another document, saw another document with Decedent's
original signature on it or saw the creation of the photocopy
offered by McMahon. Furthermore, neither Wise nor wadley recalled
signing more than one document. Thus, neither Wise nor wadley can
confirm (1) Decedent's execution of the original document or (2)
that the contents of the original document are accurately
reproduced in the photocopy offered by McMahon. Therefore, neither
Wise nor wadley qualifies as one of the two witnesses required to
prove a lost will.
The peculiar nature of the document offered by McMahon
warrants further comment. McMahon maintains that on August 27,
1992, Decedent took an original document to Hooper's office, signed
it there and had it notarized. then returned to her nearby place of
work where she had the document signed by Wise and Wadley as
witnesses. This account might seem reasonable but for the fact
that the original signatures of Wise and Wadley appear on a
document bearing only the photocopied signatures of Decedent and
Hooper. The logic of McMahon's account is further strained by the
fact that neither wise nor Wadley recalls having signed more than
one document or having seen the original document bearing
Decedent's signature.
These facts raise an unavoidable question: If Decedent
immediately took the original will to Wise and wadley for their
signatures, why did they only sign, and only see, a photocopy?
Although it is possible to imagine circumstances under which
9
Decedent could have photocopied then lost the original document in
the short time and distance between the original signing and the
alleged witnessing ceremony. the more plausible explanation is that
Wise and Wadley did not sign the photocOPY on August 27, 1992, but
rather at some later date and at the request of someone, other than
Decedent, who did not have possession of the original. This
interpretation of the evidence explains the inconsistency between
Wise's and Wadley's accounts of where the witnessing ceremony took
place and who was present at that time. Furthermore, the most
likely person to have arranged for the signatures of Wise and
Wadley would have been McMahon who had encouraged Decedent to make
a will in the first place.
On the issue of whether Decedent destroyed or revoked the
original will, McMahon produced the testimony of several persons
who allegedly heard Decedent say that she wanted to leave her
estate to Richter. McMahon herself testified that Decedent gave
her the photocOPY offered in this proceeding and that Decedent told
McMahon the original was stored in Decedent's desk. McMahon also
testified that Robert Augustin was present at Decedent's residence
after her death. In response to the suggestion of wrongdoing on
his part, Robert Augustin testified that he did not remove the
original document from Decedent's desk or see it in Decedent's
desk.
Decedent's alleged statements as to her testamentary intent,
even if consistent with the terms of the alleged will, are not
10
sufficient to rebut the presumption that Decedent destroyed the
original will with the intent to revoke it and the presumption that
Robert Augustin was innocent of any wrongdoing. Likewise, Robert
Augustin's motive for removing the original document from
Decedent's possession and his opportunity to do so are not enough
to rebut the foregoing legal presumptions absent positive and clear
proof that he actually removed the will.
It should also be noted that Decedent's entrusting of McMahon
with a photocOPY of the alleged will does not alter the standards
generallY applicable to the proof of lost wills.
In Bates's
Estate, 286 Pa. 583. 134 A. 513 (1926), the pennsylvania supreme
Court ruled that a carbon copy signed by the testator and placed in
the custody of a relative could not be probated where the original
will was in the testator's possession at the time of his death and
insufficient evidence was presented to overcome the presumption
that he destroyed it with the intent to revoke. For the foregoing
reasons. the document offered by McMahon should not be admitted to
probate as Decedent's will.
B. ASSUMING. ARGUENDO. THAT THE DOCUMENT OFFERED BY
McMAHON IS ADMITTED TO PROBATE AS DECEDENT'S WILL,
LETTERS TESTAMENTARY SHOULD NOT BE GRANTED TO McMAHON.
"A written renunciation of the right to letters testamentary
is binding and may not be withdrawn so long as the renunciation is
clear. unequivocal and uncondi tional." 32 Standard pennsylvania
Practice !il53:40 (citing Groesch Estate, 29 D. & C. 2d 155. 13
Fiduciary Rep. 65 (Phila. Co. 1962)). McMahon is the executrix
11
nominated in Decedent's alleged will. However, McMahon renounced
her right to administer Decedent's estate in a written renunciation
which was clear, unequivocal and unconditional. Indeed, the form
used by McMahon appears in 32 Standard pennsylvania Practice
5153: 39 as an example of an uncondi tional renunciation. Therefore,
assuming that the alleged will is admitted to probate, the Register
of wills should determine that McMahon waived her right to
administer Decedent's estate and should appoint an administrator
c.t.a. in accordance with 20 Pa.C.S. ~3155(b).'
C. ASSUMING. ARGUENDO. THAT THE DOCUMENT OFFERED BY
McMAHON IS NOT ADMITTED TO PROBATE. LETTERS OF
ADMINISTRATION SHOULD BE GRANTED TO ROBERT AUGUSTIN.
Where there is no valid will and no surviving spouse. letters
of administration should be granted, except for good cause. to one
or more of the intestate heirs who will best administer the
decedent's estate. giving preference among them according to the
size of their respective shares.
20 Pa.C.S. ~3155(b).
An
otherwise qualified applicant for letters of administr~tion may be
disqualified due to the applicant's nonresident status. 20 Pa.C.S.
~3157. See e.q. In re Schulz'S Estate, 120 A.2d 178, 180 Pa.Super.
237 (1956) (letters of administration properly refused to an
interested person living in a trailer outside the state of
'Legal Argument ~III(C). below, addresses the selection of an
administrator in the event Decedent's alleged will is not admitted
to probate. For the same reasons set forth therein. Robert
Augustin should be granted letters of administration c.t.a. in the
event Decedent's alleged will is admitted to probate. See 20
Pa.C.S. ~~3155 and 3158.
12
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pennsylvania) .
If Decedent's alleged will is not admitted to probate, then
according to 53155, letters of administration should be granted to
Robert Augustin and/or Richter as Decedent I s intestate heirs.
Because Robert Augustin and Richter will share equally in
Decedent's estate, there is no cause for distinguishing between the
two of them based on the size of their respective shares. However,
Richter is a resident of North Carolina and has no intention of
relocating to pennsylvania. She is thus an unfavored choice for
administratrix.
Therefore, letters of administration should be
granted solely to Robert Augustin, a pennsylvania native whom
Decedent had relied on for assistance with her personal and
financial affairs.
13
IV. CONCLUSION
For the foregoing reasons, Robert Augustin respectfully
requests that the Register of wills issue a decree denying
McMahon's petition to probate a lost will and granting letters of
administration to Robert G. Augustin. In the event the Register of
Wills decides to probate the document offered by McMahon, Robert
Augustin respectfully requests that he be granted letters of
administration c.t.a.
GATES & ASSOCIATES, P.C.
l 'J I a)
BY: n~f.~
Mark E. Halbruner
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Robert G.
Augustin)
Dated:
-,
') - 'l()
, 1996
14
._---------_.-._-- -'.
CERTIFICATE OF SERVICE
I, Mark E. Halbruner, Esquire, of the law firm of Gates &
Associates, P.C., hereby certify that I served a true and correct
copy of the foregoing brief on this date by first-class mail to the
fOllowing:
James D. Cameron, Esquire
1327 North Front Street
Harrisburg, PA 17102
(Attorney for Romayne S. McMahon)
Sharon K. Richter
701-A Barbecue Church Road
Sanford, NC 27330
(Pro Be)
GATES & ASSOCIATES, P.C.
BY: YJ1J(.~@
Mark E. Halbruner, Esquire
Sup. Ct. I.D. n66737
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Robert G.
Augustin)
Dated:
~-AO
, 1996
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BEFORE THE REGISTER OF WILLS OF CUMBERLAND COUNTY. PENNSYLVANIA
IN REI
ESTATE OF DOROTHY
E. AUGUSTIN, deceased
ESTATE NO. 21-95-392
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND NOW, comes Robert G. Augustin, by and through his
attorneys, Gates & Associates, P.C., and submits the following
proposed Findings of Fact and Conclusions of Law in opposition to
Romayne S. McMahon's petition to probate a lost will:
I. PROPOSED FINDINGS OF FACT
1. Dorothy E. Augustin (hereinafter the "Decedent") was born
July 13, 1914.
2. Decedent and sylvester E. Augustin were married August
22, 1962.
3. Decedent had one natural child, Betty Hiott. through a
previous marriage.
4. Betty Hiott is deceased and was survived by one child,
Sharon K. Richter.
5. Richter is a resident of North carolina and does not
intend to relocate her residence to pennsylvania.
6. Decedent and Sylvester Augustin adopted Robert Augustin
together.
7. Robert Augustin is a resident of Cumberland County,
pennsylvania.
,
,
,
8. Decedent and Sylvester Augustin had no natural children
or other adopted children together.
9. Sylvester Augustin died November 17. 1991.
10. Although Decedent had an up-and-down relationship with
Robert Augustin, she relied on him for assistance with financial
and personal matters.
11. Romayne S. McMahon was a friend of Decedent.
12. McMahon often suggested to Decedent that she make a will.
13. On August 27. 1992, Decedent appeared before William
Hooper, a notary public, at his office located at 2561 North Sixth
Street, Harrisburg, Dauphin County, pennsylvania.
14. Hooper identified Decedent by her bank identification
card.
15. In front of Hooper. Decedent executed a document entitled
"Last will and Testament of Dorothy Augustine" (hereinafter the
"Original Document").
16. Hooper notarized Decedent's signature on the Original
Document.
17. No one else was present with Decedent and Hooper when
they signed the Original Document.
18. With the exception of Hooper and Decedent, no one ever
saw the Original Document.
19. Decedent kept the Original Document in her possession.
20. Anthony W. Wise, Jr. and Alfred J. Wadley were co-workers
of Decedent at the real estate office of Chester c. Crone. 2500
2
\.
North 6th Street, Harrisburg. Dauphin County, Pennsylvania.
21. Wise and Wadley signed a document entitled "Last will and
Testament of Dorothy E. Augustine". dated August 27, 1992, and
bearing the photocopied signature of Hooper and what appears to be
the photocopied signature of Decedent.
22. Neither Wise nor Wadley signed any other documents
purporting to be Decedent's will.
23. Neither Wise nor wadley read the document at the time he
signed it.
24. Neither wise nor Wadley can remember the date on which he
signed the document.
25. Neither wise nor Wadley saw the making of the photocoPY
which he signed.
26. wise and Wadley signed the document sometime after August
27, 1992. and at the request of someone other than Decedent.
27. Decedent died unexpectedly on February 15, 1995.
28. At the time of her death, Decedent was employed as a real
estate agent and was able to read and drive an automobile.
29. The original Document is lost. and its disappearance has
not been explained.
30. On or about March 14, 1995, Chester C. Crone filed with
the Cumberland County Register of Wills a petition for probate and
grant of letters testamentary.
31. Along with his petition, Crone submitted the document
signed by Wise and wadley.
3
32. The document offered for probate names Romayne Shay
McMahon as executrix.
33. with his petition, Crone also submitted a document dated
March 14, 1995, and signed by McMahon which reads as follows: "The
undersigned Romayne Shay McMahon, executrix of the above decedent,
hereby renounce(s) the right to administer the estate and
respectfully ask(s) that Letters be issued to Chester c. Crone."
34. The Register of wills did not render a decision on
Crone's petition.
35. On May 11, 1995, Robert Augustin filed a petition with
the Cumberland County Orphans' Court asking that the court certify
the record from the Register of Wills and issue an order directing
that letters of administration be granted to Robert Augustin.
36. On August 15, 1995, McMahon filed an Answer with New
Matter to Robert Augustin's petition.
37. Concurrent with her Answer with New Matter, McMahon filed
a praecipe to Revoke Petition for Grant of Letters apparently
signed by Crone and a praecipe to Revoke Renunciation signed by
McMahon.
38. In her New Matter, McMahon requested that the document
originally filed by Crone be r,dmitted to probate as Decedent's will
and that letters testamentary be granted to McMahon.
39. On September 13, 1995, an Order was issued remanding the
matter to the Register of Wills for a determination of Robert
Augustin's suitability to receive letters of administration.
4
40. upon petition of McMahon, the Order was modified on
January 25, 1996, to direct that the Register of Wills first
consider whether to admit Decedent's alleged will to probate.
41. A hearing was held before the Register of Wills on
February 28, 1996.
II. PROPOSED CONCLUSIONS OF LAW
1. McMahon has not produced the evidence required to probate
a lost will which remained in Decedent's possession at the time of
her death.
2. ASSuming, arguendo, that the document offered by McMahon
is admitted to probate as Decedent's will, McMahon waived her right
to administer Decedent's estate and therefore is not entitled to
letters testamentary.
3. Robert Augustin and Richter are the two persons entitled
to administer Decedent's estate in the event of intestacy, or in
the alternative, in the event the document offered by McMahon is
admitted to probate but no executor qualifies.
4. As a non-resident of pennsylvania, Richter is
disqualified from administering Decedent's estate.
5. Robert Augustin is the most suitable person to administer
Decedent's estate.
5
WHERBFORE, Robert G. Augustin respectfully requests that the
Register of WillS adopt the foregoing Findings of Fact and
conclusions of Law.
GATES & ASSOCIATES, P.C.
BY: rnAA /1'. ~@
Mark E.f~;lbruner
1013 Mumma Road, suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Robert G.
Augustin)
Dated:
"'J -"')....0
, 1996
6
CERTIFICATE OF SERVICE
I, Mark E. Halbruner, Esquire, of the law firm of Gates &
Associates, P.C., hereby certify that I served a true and correct
copy of the foregoing proposed Findings of Fact and Conclusions of
Law on this date by first-class mail to the following:
James D. Cameron, Esquire
1327 North Front Street
Harrisburg, PA 17102
(Attorney for Romayne S. McMahon)
Sharon K. Richter
701-A Barbecue Church Road
Sanford, NC 27330
(pro se)
GATES & ASSOCIATES, P.C.
"
BY: rJllattt 'f.k {{/J
Mark E. Halbruner, Esquire
Sup. Ct. I.D. #66737
1013 Mumma Road, suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Robert G.
Augustin)
Dated:
~--:J..o
, 1996
IN REI ESTATE OF DOROTHY E.
AUGUSTINE, DECEASED.
IN TIlPo COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS'COURT DIVISION
NO. 21-95-392
RULE
WE COMMAND, you that laying asl~e all business and ex~uses
whatsoever, you be an~ appear in your proper person before the
Honorable JUdges of the Common Pleas Court, Orphans' Court
Division at a sesston of th~ said Court there to be held, for
the County of Cumberland to show ~ause why, if any, he may have
why his obje~tion to Respondent M~Mahon's Interrogatories--
First Set should not be dismissed, and why he should not be
ordered to pay Respondent M~Mahon's reasonable ~osts and attorney's
fees related to this Motion.
RilLE RPoTURNABLE TWENTY (20) DAYS FROM SERVICE THEREOF.
Witness my hand and offi~ial seal of offi~e at Carlisle,
Pennsylvania, this lath day of De~ember, 1996.
. /)~(j e, ~w..., 0.. fJ 1/ 1~
Ma.y .Lewis I
Clerk of Orphans' Court Division
Cumberland County
Carlisle,Pa.
.,
'~
-..:-.. _..-.'~. r-....-
IN RE: ESTATE OF DOROTHY E.
AUGUSTINE, DECEASED
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-95-392
RESPONDENT MCMAHON'S MOTION TO DISMISS PETITIONER'S
OBJECTION TO WRITTEN INTERROGATORIES
AND NOW comes Respondent, Romayne S. McMahon, Nominee-
Executrix of the Estate of Dorothy E. Augustine, deceased, by and
through her attorney, James D. Cameron, and respectfully
represents bS follows:
1. On September 6, 1996, Respondent McMahon served her
Interrogatories--First Set upon Petitioner Robert G. Augustin.
2. On or about October 8, 1996, Petitioner Augustin served
his Objection to Interrogatories upon Respondent McMahon.
3. A copy of Petitioner Augustin's Objection to
Interrogatories, which includes a copy of Respondent's
Interrogatories--First Set as exhibit A thereof, is attached
hereto, made a part hereof, identified as "Exhibit A".
4. In his Objection to Interrogatories, Petitioner Augustin
Objects to each of Respondent McMahon's three Interrogatories.
5. While Petitioner Augustin's Objection, being a writing,
speaks for itself, it seems to argue that Respondent McMahon
lacks standing to serve her Interrogatories--First Set upon him.
6. Pennsylvania Rule of civil Procedure 4005(a) states "any
party may serve upon any other party written interrogatories to
be answered by the party served . . . Interrogatories may be
served upon any party at the time of service of the original
process or at any time thereafter."
7. Respondent McMahon is a party to this action; Petitioner
Augustin is a party to this action.
8. Respondent McMahon served her Interrogatories--First Set
after service of original process.
9. Respondent McMahon's Interrogatories--First Set were
proper under Pa. R.C.P. 4005(a).
10. Pennsylvania Rule of civil Procedure 4005(c) states:
"The number of interrogatories or of sets of interrogatories to
be served may be limited . . . to protect the party from
unreasonable annoyance, embarrassment, oppression, burden or
expense."
11. Respondent McMahon's Interrogatories are clear, concise
and are not burdensome. Furthermore, they are directly relevant
to the matters presently at issue, because the mortgage given by
Petitioner Augustin in favor of Dorothy E. Augustine comprises
the primary asset of Mrs. Augustine's Estate.
12. Petitioner Augustin's objection to Respondent McMahon's
Interrogatories--First Set is without basis under the
Pennsylvania Rules of civil Procedure and should therefore be
dismissed.
13. Petitioner Augustin served his objection to
Interrogatories upon Respondent McMahon thirty-one days after the
Interrogatories were served upon him.
2
"
14. The belated nature of Petitioner Augustin's objection
demonstrates its dilatory purpose.
WHEREFORE, Respondent McMahon requests this Honorable court
to dismiss Petitioner Augustin's objection to Respondent
McMahon's Interrogatories--First Set, and to sanction him for his
dilatory conduct by awarding Respondent McMahon her reasonable
costs and attorney's fees related to this Motion to compel.
Respectfully submitted,
'.
Ja
13 Street
Ha ~ sburg, PA 17102
(717) 236-3755
Attorney I.D. No. 5899B
Attorney for Romayne S.
McMahon
3
CERTIFICATE OF SERVICE
I, James D. Cameron, Esq., hereby certify that I have this
loth day of October, 1996, served a copy of the foregoing
Respondent McMahon's Motion to Dismiss Petitioner's Objections to
Interrogatories by first class mail, postage pre-paid, addressed
as follows:
Mark E. Halbruner, Esq.
GATES & ASSOCIATES, P.C.
1013 Mumma Road, suite 100
Lemoyne, PA 17043
Sharon K. Richter, pro se
Route 1, Box 578
Broadway, NC 27505
Ja
13 Street
Ha.. sburg, PA 17102
(717) 236-3755
Attorney I.D. No. 58998
Attorney for Romayne S.
McMahon
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IN RE:
ESTATE OF DOROTHY E.
AUGUSTIN, deceased
I IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I ORPHANS' COURT DIVISION
I
I ESTATE NO. 21-92'190
OBJECTION TO INTERROGATORIES
TO: James D. Cameron, Esq., Attorney for Romayne S. McMahon
1327 North Front Street
Harrisburg, PA 17102
AND NOW, comes Robert G. Augustin, by and through his
attorneys, Gates & Associates, P.C., and makes the following
objection to the interrogatories served upon him in connection with
the above-captioned estate:
1. On September.9, 1996, the undersigned attorney for Robert
G. Augustin received a document entitled "Interrogatories . First
Set", a copy of which is attached hereto as Exhibit "A".
2, The document set forth three interrogatories concerning
a mortgage granted by Robert G. Augustin, as mortgagor, in favor of
Dorothy E, Augustine, as mortgagee.
3. The interrogatories were prepared and ser~ed by James D.
Cameron, Esquire, on behalf of Romayne S. McMahon in her capacity
as nominee-executrix of Dorothy E. Augustine's estate.
4. On February 28, 1996, a hearing was held before the
Cumberland County Register of Wills to determine (al whether a
document offered by McMahon should be admitted to probate as the
last will ,and testament of Dorothy E. Augustine, (b) assuming the
document is admitted to probate. whether McMahon should be granted
letters testamentary and (c) assuming the document is not admitted
to probate. the appropriate person to administer Dorothy E.
Augustine's estate.
5. The Register of Wills has not yet rendered a decision on
these issues.
r,
,.
6. McMahon currentlY has no authority to administer DorothY
E. Augustine's estate.
7. There is no other litigation pending before the
cumberland County orphans' Court Division which would give McMahon
standing to conduct discovery on behalf of DorothY E. Augustine's
\
\
estate.
WHEREFORE, Robert G. Augustin objectS to the entire set of
interrogatories served on him by McMahon.
GATES & ASSOCIATES. P.C.
BY: ~Jf. :NTlJP;Z
Mark E. Halbruner, Esquire
1013 Mumma Road
suite 100
Lemoyne. PA 17043
(717) 731-9600
(Attorneys for Robert G.
Augustin)
Dated: october 8, 1996
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IN RE: ES'!'ATE OF DOROTHY E.
AUGUSTINE, DECEASED
IN TilE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 2l-95-392
INTERROGATORIES--FIRST SET
To: Mark E. Halbruner, Esq., Attorney for Robert G. Augustin
GATES & ASSOCIATES, P.C.
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
PLEASE TAKE NOTICE that demand is hereby made by the
attorney for Romayne S. MCMahon, Nominee-Executrix of the Estate
of Dorothy E. Augustine, deceased, that these interrogatories be
answered in writing, verified, and served upon the undersigned
within thirty (30) days of their service to you. Objections must
be signed by the attorney making them. In your answers, you must
furnish such information as is available to you, your employees,
representatives, agents, and attorneys. Your answers must be
sUpplemented and amended as required by the Pennsylvania RUles of
Civil Procedure.
With respect to any claim of privilege or immunity from
discovery, you must identify the privilege or immunity asserted
and provide SUfficient information to substantiate the claim.
In lieu of identifying documents in response to these
interrogatories, you may provide copies of such documents with
appropriate references to the corresponding interrogatories.
The word "document" means any written, printed, typed, or
other graphic matter of any kind or nature, including
photographs, microfilms, phonographs, video and audio tapes,
punch cards, magnetic tapes, discs, data cells, drums, and other
data compilations from which information can be obtained.
",
. ,
The Words "identify" or "identity" mean a description with
sUfficient partioularity that the thing may thereafter be
specified and reoognized, including relevant dates and plaoes,
and the identification of relevant people, entities, and
documents.
The WOlid "yoU" or "your" refers to Robert G. Augustin.
BY:
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James D. Cameron
1P27 North Front street
Harrisburg, PA 17102
(117) 236-3755
Attorney I.D. No. 59899
Attorney for Romayne S.
McMahon
Da te :~'.:l t~I" !,V' (". 1(/9(.
2
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1. With respect to the Mortgage dated September 1, 1992, and
recorded in Book Number 1821, Page 481, in the Office of the
Recorder of Deeds of Dauphin County, Pennsylvania, by and
between Robert G. Augustin, Mortgagor, and Dorothy E.
Augustine, Mortgagee, state:
(a) the initial loan amount;
(b) the rate of interest;
(c) the date the mortgage was made; and
(d) the date and amount of any and all payments made by you
or on your behalf, attaching copies of any checks,
receipts, or any other written evidence in support of
any such payments.
3
2. For each payment identified in your answer to Interrogatory
number 1, state:
(al the amount you believe to constitute a payment of
interest; and
(b) the amount you believe to constitute a payment of
principal.
4
3. As of the date of your answer, state the current balance you
believe to be due upon the mortgage identified in
Interrogatory number 1, as to:
(a) principal, and attach copies of any ledger sheets,
accountings, or any other documents relating to any and
al.l payments made upon the said Mortgage not previously
attached hereto in answer to a prior Interrogatory; and
(b) . accrued interest, and attach copies of any ledger
sheets, accountings, or any other documents relating to
any and all payments made upon the said Mortgage not
previously attached hereto in answer to a prior
Interrogatory.
5
These Interrogatories 'shall be deemed to be continuing
Interrogatories. If you or anyone acting on your behalf obtains
or learns of additional information requested, but not supplied
in your Answers, you shall promptly provide a Supplemental Answer
under oath containing the same.
BY: ~. ,,-,,'
Ja eft D. Cameron
1027.North Front Street
Harrisburg, PA 17102
(717) 236-3755
Attorney I.D. No. 59899
Attorney for Romayne s.
McMahon
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VERIFICATION
The undersigned verifies that the Answers to
Interrogatories--First Set contained herein are true and correct.
.
The undersigned understands that false statements herein are made
subject to the penalties of 18 Pa.C.S. ~ 4904, relating to
unsworn falsification to authorities.
ROBERT G. AUGUSTIN
Date:
7
CERTIFICATE OF SERVICE
I, James D. Cameron, hereby certify that I have served the
foregoing In~errogatories--First Set by first class mail this 6th
day of September, 1996, addressed as follows:
Mark E. Halbruner, Esq.
GATES & ASSOCIATES, P.C.
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
Attorney for Robert G. Augustin
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James D. Cameron
l327 North Front Street
H~rrisburg, PA 17102
(717) 236-3755
Attorney I.D. No. 59899
Attorney for Romayne S.
McMahon
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IN RE: ESTATE OF DOROTHY E.
AUGUSTINE, DECEASED
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-95-392
AND NOW, this
RULE TO SHOW CAUSE
t!-
ill day of _De-(.t'W(~,
199b, upon
consideration of Respondent McMahon's Motion to Dismiss
Petitioner's Objection to written Interrogatories, a Rule is
\. .
hereby issued, directed to Petitioner, Robert G. Augustin, to
show what cause, if any, he may have why his objection to
Respondent McMahon's Interrogatories--First Set should not be
dismissed, and why he should not be ordered to pay Respondent
McMahon's reasonable costs and attorney's fees related to this
Motion.
RULE RETURNABLE TWENTY (20) DAYS FROM SERVICE THEREOF.
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IN HE: ES'I'A'I'E OF' DURO'!'IIV E.
AUGUSTINE, DECEASED
IN 'I'IIE COllR'I' OF' COMMON PLEAS
CUMBERLAND COUN'l'Y, PENNSVLVANIA
ORPHANS' COllR'!' DIVISION
NO. 2l-95-392
HESPOtlPEN'l' MCMAHON' S MO'!'ION '1'0 DISMISS PE'!'I'!'IONER' S
OBJECTION TO WRI1~EN INTERROGATORIES
, .
AND NOW comes Respondent, Romayne S. McMahon, Nomlnee-
ExecutrIx of the Estate of Dorothy E. AugustIne, deceased, by and
through her attorney, James D. Cameron, and respectfully
represents as follows:
1. On SeptemlJer 6, 1996, Respondent McMahon served her
Interrogatories--Flrst Set upon Petitioner RolJert G. Augustin.
2. On or about October 8, 1996, Petitioner AugustIn served
his Objection to Interrogatories upon Respondent McMahon.
3. A copy of Petitioner Augustin's Objection to
Interrogatories, which includes a copy of Respondent's
Interrogatories--First Set as exhibit A thereof, is attached
hereto, made a part hereof, identified as "Exhibit A".
4. In his Objection to Interrogatories, Petitioner Augustin
objects to each of Respondent McMahon's three Interrogatories.
5. WhIle Petitioner Augustin's Objection, being a writing,
speaks for itself, it seems to argue that Respondent McMahon
lacks standing to serve her Interrogatories--First Set upon him.
6. Pennsylvania Rule of civil Procedure 4005(a) states "any
party may serve upon any other party written interrogatories to
be answered by the party served . . . Interrogatories may be
served upon any party at the time or service 'or the orIginal
process or at any tIme thereafter."
'I. Respondllnt McMahon is a party to thIs action; Petitioner
Augustin Is a party to this actIon.
,
O. Respondent McMahon served her Interrogatories--Flrst Set
after service of orIginal process.
9. Respondent McMahon's Interrogatorles--Flrst Set were
, ,
proper under Pa. R.C.P. 4005(a).
10. Pennsylvania Rule of civil Procedure 4005(c) states:
"The number of Interrogatories or of sets of Interrogatories to
be served may be lImited . . . to protect the party from
unreasonable annoyance, embarrassment, oppression, burden or
expense."
11.' Respondent McMahon's Interrogatories are clear, concise
and are not burdensome. Furthermore, they are directly relevant
to the matters presently at issue, because the mortgage given by
Petitioner Augustin in favor of Dorothy E. Augustine comprises
the primary asset of Mrs. Augustine's Estate.
12. Petitioner Augustin's objection to Respondent McMahon's
Interrogatories--First Set is without basis under the
Pennsylvania Rules of civil Procedure and should therefore be
dismissed.
13. Petitioner Augustin served his Objection to
Interrogatories upon Respondent McMahon thirty-one days after the
Interrogatories were served upon him.
2
14. '1'he belated nature of Pet! tloner Augustln' s Objection
demonstrates its dIlatory purpose.
WHEREFORE, Respondent McMahon requests this Honorable Court
to dismIss Petitioner AugustIn's objection to Respondent
McMahon's lnterrogatories--First Set, and to sanction hIm for his
dilatory conduct by awarding Respondent McMahon her reasonable
costs and attorney's fees related to this Motion to Compel.
Respectfully submItted,
(. /-'7
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Ja~ D. Cameron
13 7 North Front Street
Ha r sburg, PA l7102
(717) 236-3755
Attorney I.D. No. 58998
Attorney for Romayne S.
McMahon
, ,
3
~EH'l'11' 1 CA'11LUI::..lIISu..'l.lC.t::
l, James U. comoron, Eaq., horoby cortlry thut 1 huvo ~hIs
loth day of Octol.JOr, 1991;, servOll n copy of tho foregoing
Respomlent MqMahon' a Motion to I>lnmlsu 1'01:1 tl onor' a ObjectIons to
Interrogatories by flrat c1nss mnll, flostayo pro-puId, addressed
as follows:
Mnrk E. lIullJrunOl", Euq.
OA'l'ES & ASI:IOCIA'I'lm, P.C.
1013 Mummn Hond, Hulto IUU
Lomoyno, PA l1u43
Sharon K. Hlchtor, pro so
Houto 1, Box [;'/11
Broudway, NC ~150[;
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"n 1 . 1>. camih'on
13~1 North Front street
IIn~r sburg, PA 17102
(717) 236-3755
Attorney I.U. No. 58998
Attorney for Romayne S.
McMahon
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IN REI
ESTATE OF IJORO'l'HY B.
AUGUSTIN, decoaaod
1N 'l'HE COUR'!' OF COMMON PLEAS
CUMBERLAND COUN'l'Y, PENNSYLVANIA
ORPHANS' COURT DIVISION
ESTATE NO. 21'92-190
9]YBCTION TO INTERROGATORIES
, .
TOI JnmBu IJ, COlllorulI, 1':lIlj" Atl.urnov rOI~ Romayne S. McMahon
13Z" North I'rullt fltruut
lIarr.lllblll'Y, I'A 1'110;!
AND NOW, lllJl1\llll lluhnrL 0, AlIYlIutJn, by and through his
attornuYlI, (Jul.ulI ~ AlllluulllLOII, I',C., nnd makes the (ollowing
objectiulI Lo Lho 11ItnIToYlltur.l ou b:-:>rvou upon him in connection with
the nbovo'ullpt.lolIllll UIILlltOI
1. 011 lJupLllmbllr'~, 1991i, the ulldersigned attorney for Robert
G. AugUUt!1I rouu I villi II ducumollt onti tleu "Interrogatories - First
Set", a copy ur which .III nUnched hereto as Exhibit "A".
Z. 'I'ho documulIL Hot forth three interrogatories concerning
n mortl.Jo<Jo l.JrollLod by Ilubort G. Augustin, as mortgagor, in favor of
DorothY I~. AIHJunl.lllo, aH mortgagee.
3. '1'110 Interrogatories were prepared and served by James D.
Cameron, Enquire, on behalf of Romayne S. McMahon in her capacity
an nominee-executrix of Dorothy E. Augustine's estate.
4. 011 February 28, 1996, a hearing was held before the
Cumberland County Register of wills to determine (a) whether a
document offered by McMahon should be admitted to probate as the
last will ,and testament of Dorothy E. Augustine, (b) assuming the
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document ill admitted to probate, whether McMahon should bo granted
letters testamentary and (c) assumIng tho document is not admitted
to probate, the approprIate person to admInister Dorothy E.
Augustine's estate.
5. 'l'he'RegIster or wIlls has not yet rendered a dec;lsion on
these issues.
6. McMahon currently has no authority to admin1ster Dorothy
E. Augustine's estate.
7. 'l'here 1s no other Ii tiga tion pending be rare the
Cumberland County Orphans I Court Di v 1sion which would give McMahon
standing to conduct discovery on behalf of Dorothy E. Augustine's
estate.
WHEREFORE, Robert G. Augustln objects to the entire set of
interrogatories served on him by McMahon.
GATES & ASSOCIATES, P.C.
BY: ~yJf. vJg2
Mark E. Halbruner, Esquire
1013 Mununa Road
Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Robert G.
Augustin)
Dated: October 8, 1996
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1. with respect to the Mortgage dated September I, 1992, and
recorded in Book Number 1821, Page 48l, in the Office of the
Recorder of Deeds of Dauphin County, Pennsylvania, by and
between Robert G. Augustin, Mortgagor, and Dorothy E.
Augustine, Mortgagee, state:
(a) the initial loan amount;
(b) the rate of interest;
(c) the date the mortgage was made; amI
(d) the date and amount of any and all payments made by you
or on your behalf, attaching copies of any checks,
receipts, or any other written evidence in support of
any such payments.
.
,
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3
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2. For each. payment identified in your answer to Interrogatory
number 1, state:
(a) the amount you believe to constitul:e a payment of
interest; and
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(b). the' amount
.. principal.
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'j'hese Interrogatories 'shall be deemed to be continuing
Interrogatories. rf you or anyone acting on your behalf obtains
or learns of additional information requested, but not sUpplied
in your Answers, you shall promptly provide a Supplemental Answer
under oath containing the same.
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BY: /' / ,.) c.', C ~';--("'I",,..,\../
Ja ep D. Cameron
I027.North Front Street
HarriSburg, PA l7102
(717) 236-3755
Attorney r.D. No. 59899
Attorney for Romayne S.
McMahon
Date: ~'.!'I"~t! .-.\..1' . (",
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VERIFICA'l'ION
'rhe undersigneu verifies that the Answers to
Interl'ogatories--First Set contained herein are true and correct.
"
'l'he undersigned unuerstands that false statements herein are made
subject to the penalties of l8 Pa.C.S. ~ 4904, relating to
unsworn falsification to authorities.
, .
ROBERT G. AUGUSTIN
Date:
'.
7
~ER'l'IFIC^,l'E OF SEHV1CE
I, James D. Cameron, hereby certify that I have set'vecl the
foregoing Inl;errogatories--First Set by first class mail this 6th
day of September, 1996, addressed as follows:
, ,
Mark E. Halbruner, Esq.
GATES & ASSOCIATES, P.C.
1013 Mumma Road, suite IUD
Lemoyne, PA 17043
Attorney for Robert G. Augustin
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James D. Cameron
1327 North Front street
lIa,rrisburg, PA 17102
(717) 236-3755
Attorney I.D. No. 59899
Attorney for Romayne S.
McMahon
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IN RE: ESTATE OF DOROTHY E.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-95-392
AUGUSTINE, DECEASED
CERTIFICATE OF SERVICE
I, James D. Cameron, Esq., hereby certify that I have this
19th day of December, 1996, served the Rule to Show Cause issued
by the Court on December 17, 1996, and the Rule issued by the
Clerk of the Orphans' Court on December 18, 1996, upon the
fOllowing, by first class mail, postage pre-paid:
Mark E. Halbruner, Esq.
GATES & ASSOCIATES, P.C.
1013 Mumma Road, suite 100
Lemoyne, PA 17043
Attorney for Robert G. Augustin
Sharon K. RiChter, pro se
Route 1, Box 578
Broadway, NC 27505
J D. Came n
1 27. North Front Street
H r iSburg, PA 17102
(7 7) 236-3755
Attorney I.D. No. 58998
Attorney for Romayne S.
McMahon
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IN REI
ESTATE OF DOROTHY E.
AUGUSTIN, deceased
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
7s -,'3<1?
ESTATE NO. 21-!2-~
.
.
ANSWER TO MOTION TO DISMISS
OBJECTION TO INTERROGATORIES
AND NOW, comes Robert G. Augustin, by and through his
attorneys, Gates & Associates, P.C., and makes the following answer
to the rule to show cause issued upon Romayne S. McMahon's motion
to dismiss Robert G. Augustin's objection to interrogatories:
1.
Denied.
After reasonable investigation, Robert G.
Augustin is without knowledge or information sufficient to form a
belief as to the truth of the averments stated in Paragraph 1 of
the petition, and proof thereof is demanded if relevant. By way of
further answer, the interrogatories were received by the
undersigned counsel on September 9, 1996.
2 . Admi tted.
3 . Admi tted.
4 . Admi tted.
5. Admitted.
6.
Denied.
Pennsylvania Rule of civil Procedure 4005 (a)
speaks for itself.
7.
Denied.
The "action" referred to in paragraph 7 of
McMahon's motion is apparently the peti tion for grant of letters of
administration filed by Robert G. Augustin on May 11, 1995.
Although the petition was an action within the meaning of the
Pennsylvania Rules of civil procedure, the petition was resolved,
and the matter was remanded to the Cumberland County Register of
Wills by this Court's Order of September 13, 1995. The Register of
Wills held a hearing on February 28, 1996, to determine whether an
alleged will of Dorothy E. Augustin should be admitted to probate
and to select a representative to administer the estate. The
Register of wills has not yet rendered a decision on those issues.
A proceeding before a register of wills is not governed by the
pennsylvania Rules of civil Procedure and is therefore not an
action as contemplated by those rules. Pa.R.C.P. 1001 (a); 20
Pa.C.S. U901-910. The Register's decision may ultimately be
appealed to this Court, and other issues arising in the
administration of the estate may be raised in this Court. However,
until an issue is brought in or appealed to this Court, Robert G.
Augustin and McMahon are not parties to an action concerning the
estate of Dorothy E. Augustin. Pa.R.C.P. 1001(a).
8. Admitted. By way of further answer, McMahon served her
interrogatories after the termination of the Orphans' Court action.
See paragraph 7, above.
9. Denied. pennsylvania Rule of civil Procedure 4005 (a)
"appl[ies] to any civil action or proceeding at law or in equity
brought in or appealed to any court which is subject to [the
pennsylvania Rules of civil Procedure]..." Pa.R.C.P. 4001 (a) (1).
An action in the Orphans' Court Division of a Court of Common Pleas
2
is subject to Pa.R.C.P. 400S(a). Pa.O.C.R. 3.6. However, Robert
G. Augustin is not aware of any authority for the proposition that
a proceeding before a register of wills is subject to Pa.R.C.P.
4005(a), specifically, or the pennsylvania Rules of Civil
procedure, generally. Although 20 pa.C.S. ~903 provides for
limited discovery-type procedures before a register of wills, there
is no provision for the service of interrogatories. Because there
is no action pending before this Court, McMahon's interrogatories
were not authorized by Pa.R.C.P. 4005(a).
10. Denied. pennsylvania Rule of civil procedure 4005 (a)
speaks for itself.
11. Denied. McMahon's characterization of the
interrogatories is a conclusion of law requiring no responsive
pleading. It is specifically denied that the interrogatories are
relevant to the matters presently at issue. There are no matters
presently at issue before this court.
12. Denied as a conclusion of law requiring no responsive
pleading.
13. Denied. Robert G. Augustin is without sufficient
knowledge or information to determine when McMahon's
interrogatories were served on him. See paragraph 1, above. By
way of further answer, Robert G. Augustin served his objection to
McMahon's interrogatories twenty-nine days after receiving the
interrogatories.
14. Denied. Robert G. Augustin served the objection without
3
CERTIFICATE OF SERVICE
I, Mark E. Halbruner, Esquire, of the law firm of Gates &
Associates, P.C., hereby certify that I served a true and correct
copy of the foregoing answer on this date by first-class mail to
the following:
James D. Cameron, Esquire
1327 North Front Street
Harrisburg, PA 17102
(Attorney for Romayne S. McMahon)
GATES & ASSOCIATES, P.C.
BY: n~&. ~flJ
Mark E. Halbruner, Esquire
Sup. Ct. I.D. #66737
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Robert G.
Augustin)
Dated: January 7, 1997
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IN RE: ESTATE OF DOROTHY E.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-95-392
AUGUSTINE, DECEASED
MOTION TO SUPPLEMENT RECORD BEFORE THE REGISTER OF WIU.!'I
AND NOW comes Romayne S. McMahon, Nominee-Executrix of the
Estate of Dorothy E. Augustine, deceased, by and through her
attorney, James D. Cameron, who respectfully states:
1. On February 20, 1996, the Register of Wills held a
hearing to determine whether to admit to probate a photocopy of
the Last Will and Testament of Dorothy E. Augustine, as well as
the identity of the proper person to be appointed personal
representative of Mrs. Augustine's Estate.
2. The Register has not yet decided either of these issues.
3. Romayne S. McMahon is the nominated Executrix under the
Will offered for probate. Sharon K. Richter is the residual
beneficiary of the Will, as well as an intestate heir.
4. Robert G. Augustin, who is not a beneficiary under Mrs.
Augustine's Last Will and Testament but who would be an heir if
she had died intestate, previously filed a petition to have
himself appointed as administrator of Mrs. Augustine's Estate,
despite of the fact that he is the mortgagor of the mortgage
which constitutes the primary asset of her Estate.
5. On March 27, 1997, Robert G. Augustin filed (again) for
bankruptcy with the United States Bankruptcy Court, in the matter
docketed as case number 1-97-01286. A certified copy of this
~~iif~j;;ii#tih~II,.""lii-J:ti\W;r~~~'_"''''''''''h',''''''-__ '1_'"__<~-_
CERTIFICATE OF SERVICE
James D. Cameron, attorney for Respondent Romayne S.
McMahon, hereby certifies that he served a copy of the foregoing
Motion to Supplement Record Before Register of Wills by mailing a
copy of the same, first class mail, postage pre-paid, on the 2nd
day of April, 1997, addressed as follows:
Mark E. Halbruner, Esq.
GATES & ASSOCIATES, P.C.
1013 Mumma Road, suite 100
Lemoyne, PA 17043
Sharon K. Richter, pro Be
Route 1 Box 578
Broadway, NC 27505
Ja e
13 7
Ha sburg, PA 17102
(71 ) 236-3755
Attorney I.D. No. 58998
Attorney for Respondent
Romayne S. McMahon
"
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.
.....6111'_.-'10 ....,,,.... In.. _nt'l'. (i)
,
(
Name of Debtorl AUGUSTIN, ROBERT G.
caee NOI
~
(
POI' Chapter ',11,12 and IJ a.... ani,.
PILING 0' PLAIt
--.
Dabtor intand. to f11. . plan within th_ tt.. allowed by Itatuta, rul., or ordar of the court.
PRIO BAlfJ. U
Location Whar. pl1~
HARRISBURG, l'A
Y CAllI ,ILED WITHIN t..MT , TPJUI
Ca.. Huablr
1-94-00481
If .ora than Dna attach additional. ..t
Dat. riled
03/31/94
'I"DINa BANltRUPTCY CAaID r LED BT Atf1' II'OUIIII AR11fIR OR AJl'PILIATI or TnB DBBTOR It 1101'1 t an ana athch _heat
..... of Debtor Ca.. "uatMr Dat.a rU~
blaUCR.hip
Diatdal
Jud91
Debtor i. ali9ib1a
united stat.. cod.
RlQu.aT fOR ULIIP
for and r~u..t. ra11.f in accordancl with th_ chaptar of
apealried in thi. p4tition.
tith 11,
TO BII COHPLB'l'BD aT JIIDIVIDUAL CBAPTBR 7 Ol8t'OR wlra
PRIMARILY CO.BUKER DIBTS (I.. I'lL. '1-353 322,
I .. Ivara that I .., proceed under chaptar 7,11, or 12
or 13 of tlt1. 11, united atat.. Cod., undaratand th_
rali.f a..ilable under e.oh auoh ohaptar, and ohoe.a to
proc.ed und.r ohapt.r 7 of .uoh titl..
It I .. r.pr...nted by an attorn.y, Ishibit aha. ba.n
oDllpleted.
O.btor
Date
SIGNATURES
ArI'ORJlKr
March 27. 1997
Date
INDIVIDUAL DIBTOR
J dacbcw und.r penalty of perjucy that t~fonaaticn prD'f'ided in thb petition i. tnae and ODneal..
K~ t?~~ March 27.1997
AUGUSTI., ROaD'l' a., Debtor Data
..Bla1T -8- eTa be o~l.t.d by attorn.r for indi.idual
Chapter 7 debtorc.) with priaarily conauaar dabta.)
I, the attornay for tba dabtor n-..d in the foregoIng
petition, daclare that I ha.a !"fo~ed the dabtor that
Cha, ahe, or thay. aa,. proc.ed unclarohapter 7, 11, 12,
Dr 1J of title 11, United Ita loa. Coda, and ha.a aaplaiDad
the re1iar a.ailabl. und.r each .uoh chapter.
r,/~4P'/~
Attornay~ D
,I I
J oanU,. that I .. " baftJuuptDJ' petition preparar.. I
dafined in 11 U.I.C. 110, that J prapared lobi. I
docua.nt for o~pan..tion, aod that I ha.. provided
tha Dabtor with a oopr of tbl. d~nt
C&R'1'JPlCATJcm AHIJ 81QIIIAmU 01' HOH..ATl'OJUfB1'
DAWKRUPTCY PBTITIOM PRKPARJal Cae. 11 U.I.C. 110)
aankruptor Patition Prapatar
800ial S.curity HUMber
Addr.a.
Tel.Ho.
..... and loohl I.writy luaban of all other
indi.idual. who prepared or a..iatad in pcwpering
thh docuaant.
If aora than ana penoo prepared thb dDCnmiant,
attach additional .igned aba.t. contD~ng to the
appropriata Offioial Para tor ..Db para on.
aanknaptcy Patition Praparer
IN THB MATJ'BR OF
ROBBRT G. AUGUSTIN
tia AUGUSTIN BLBCTRICAL
(' UNITBD STATBS BANKRUPTCY COURT(""
10. .,; THB MIDDLB DISTRICT 01' PBNNSYLVA.,1A
CASB NO. 1-97-01286
3
"-.
CHAPTBR 13
Deblor(s)
NOTICE
PURSUANT to Bankruptcy Rules 1002, 1007, 2017(b), and 3015, and I I U.S.C. 521,lhe docwnent below must be ftled to
complete Ihe above. referenced peddon. If Ihese docwnenlS arc not filed wilhln Ihe dme designated an ORDBR MAY BB BNTBRED
DISMISSING THIS CASB.'
~HIBIT . A" TO VOLUNTARY PBTITION (CHAPTER I I CORPORATION) WITHIN PIVB (5) DAYS.
DBCLARA TION (CORP/PARTNBRSHIP) OPPICIAL FORM 2 WITHIN PIVB (5) DAYS.
LIST OF EQUITY SECURITY HOLDBRS (IP THBRE ARE NO EQUITY SECURITY HOLDERS, ATI'ACH A PAGE
TO YOUR PBTITION WITH A STATEMBNT TO THAT BPPBCT.) (CORPORATIONS AND LIMITED
PARTNERSHIPS.CHAPTER I I ONLY) WITHIN FIFTEBN (IS) DAYS.
LIST OF lWENTY LARGEST UNSBCURED CREDITORS (CHAPTER II ONLY) WITHIN PIVE (5) DAYS.
OFFICIAL FORM 4.
_XXX_ MAILING MA TRlX 01' ALL CREDITORS (IN ALPHABETICAL ORDBR) WITHIN (5) DAYS
_XXX_ STATEMENT OF ATIORNBY WITHIN FIFTEEN (IS) DAYS.
_XXX_ STATEMENT 01' FINANCIAL APFAIRS (OPFICIAL FORM 7) WITHIN FIFTEEN (IS) DAYS.
_XXX_SCHBDULES (CHAPTER 7. 12 AND 13 ORIGINAL AND 2 COPIES, CHAPTER II ORIGINAL AND 5 COPIES:
OFFICIAL FORM 6) WITHIN FIFTEEN (IS) DAYS.
ALL SCHEDULE A SCHBDULB B SCHBDULE C_(lndlv.)
SCHEDULE D - SCHEDULB E- SCHEDULB 1'_
SCHEDULE G- SCHBDULB H_ SCHBDULB 1_ (Indlv.)
SCHEDULE J_(lndlv.) SUMMARY OF SCHEDULES_
_XXX_ CHAPTER 13 PLAN WITH ONB (I) PAGE SUMMARY OF PLAN AND PROPOSBD ORDER CONFIRMING PLAN
WITHIN FlFTEBN (IS) DAYS.
CHAPTER 12 PLAN WITHIN 90 DAYS OF PILING OF PBTITION.
CHAPTER 7 INDIVIDUAL DEBTOR'S STATEMENT OF INTBNTIONS (IP THERE ARE NO SECURED
CONSUMER DEBTS, ATI'ACH A PAGE TO YOUR PBTITION WITH A STATBMENT TO THAT BPFBCT)
WITHIN THIRTY (30) DAYS AFTER THE DATE OF PILING Or. ON OR BEFORE THB DA TB 01' THE
MEBTING OP CREDITORS, WHICHEVER IS EARLmR (OPFICIAL FORM 8).
I hereby certify that on March 28. 1997, I caused a copy 01 this notice to be served upon the debtor or debtor's
representative. {;a.J~
By:cwg
DEPUTY CLERK
NOTICE REGARDING DEFICmNT Fn.ING
In _ wi1h tho a...nI Onlcr oovemina DbmJuaI orc....1Uld Imposition orSIIldlOlll ror Jno:ompl'" Filinp, tho UniIod S\&lea TNIloo la docmod to haw ntod. Motion to
DiJmisI tho bankruptoy.... buod upon deDelcnci.. in tho clocumont.o roquirod to bo mod by tho debtor JlIU1UOlll to tho Dankrupt<y Codo, IlanIuuptoy Rul... or Local Dankruptoy
Rul... ThIt motion will bo gnntod and tho.... dismiu<d if tho opoclfiod deDelen,t.. ... not comclod within tho appruprim timo. or within Nell lIutha-limo u tho Coull may allow
by Onlcr. The debtor may m.. Rcquoat for . nearing on tho Motion to OismiJo. nowovor,' roquoot for. hoorina..... notllay tho duo dole for -...:tin. OIly deIIelcncl...
The documa1lo chocItod muol bo mod by tho duo dole indicated, unI.... Motion to Extend Tho Complotion Om b mod.
CLERK. U.s. BANKRUPTCY COURT
P.O. BOX !lOB
IIARRISDURG, PA 17108
OEFlC.FRM
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CERTIFICATE OF SERVICE
I, James D. Cameron, rereby certify that I served a true and
correct copy of the above Praecipe to withdraw by first class
mail, postage-prepaid, addressed as follows, this 16tn day of
January, 1998:
Mark E. Halbruner, Esq.
GATES & ASSOCIATES, P.C.
1013 Mumma Road, suite 100
Lemoyne, PA 17043
Attorney for Robert G. Augustin
Sharon K. Richter, pro Be
Route 1 Box 578
Broadway, NC 27505
"
J
1 street
H r iSburg, PA 17102
(71 ) 236-3755
Attorney I.D. No. 58998
Attorney for Romayne S.
McMahon
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